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ANALYTICAL  TABLES 


OF  TH« 


LAW  OF  EVIDENCE 


FOE  USE  WITH 


STEPHEN'S  DIGEST  OF  THE  LAW  OF  EVIDENCE 


BY 

GEORGE  M.  DALLAS,  LL.D., 

AND 

HENRY  WOLF  BIKLE',  A.M.,  LL.B. 


PHILADELPHIA : 

T.  &.  J.  W.  JOHNSON  &  CO. 

1903. 


D/(./S    o. 
I  3  0J 


Copyright,  1903, 

BY 

T.  &  J.  W.  Johnson  &  Co. 


In  the  preparation  of  the  following  Tables  the  effort 
has  been  made  to  present  a  methodical  outline  of  the  Rules 
of  Evidence,  as  set  forth  in  Stephen's  Digest.  Primarily 
they  are  designed  for  the  use  of  students,  but  the  busy 
practitioner  may  occasionally  find  it  convenient  to  refer  ta 
•them. 

The  general  purpose  of  the  accompanying  notes  is  merely 
to  make  the  Tables  more  nearly  complete  and  readily  intelligi- 
ble. Where  they  depart  from  the  text  of  the  Digest,  or  extend 
beyond  it,  they  are  but  suggestive;  and  the  suggestions  made 
are  not  fully  discussed,  nor  the  authorities  in  their  support  ex- 
haustively cited. 

The  references,  where  not  otherwise  indicated,  are  to  the- 
Articles  of  Stephen's  Digest  of  the  Law  of  Evidence.  The 
notes  occasionally  referred  to,  are  those  contained  in  the 
Second  American  Edition  (from  the  sixth  English  edition)  with 
annotations  and  references  to  American  cases,  by  George 
Chase,  LL.B. 


TABLE   OF   CONTENTS 


IN  THREE   PARTS. 


First  Part.— Relevancy. 

RULES  CONCERNING  RELEVANCY 

I 

}  Of  Inclusion 


Applicable  generally 

|>  Any  fact  in  issue 

^  Facts  relevant  to  any  fact  in  issue 

Res  Gestae 

Facta  necessary  to  be  known  . 


Applicable  specifically 

r  Where  there  is  a  question  whether  any  act 
was  done  by  any  person 

V  Where  a  person's  conduct  is  in  issue,  or  is 
relevant 

y  Where  the  existence  of  a  conspiracy  is  in 
issue,  or  is  relevant 

"  Where   a  right   of  or  over   property  is  in 
question 

>■  Where  the  existence  of  any  custom  is  in 
question 

Where  the  proceeding  is  a  criminal  case  of 
rape 

^  Of  Exclusion 


TABLE 
I-XXIII 

I-VIII 

I-III 

I 

I 

II 

III 

IV-VIII 

IV 
IV 


vr 


vn 


VIII 
IX-XXIII 


Facts  not  connected  with  ant/ fact  in  isBue  .    .    . 


IX 


>  Hearsay 

Admissions 

Confessions 

)•  Statements  of  persons  since  deceased  .    .    . 

I  Evidence  previously  given 

'   Statements  of  Acts  of  State  or  of  facts  of  a 
j       public  nature 

C  Statements  made  for  public  reference .    .    . 

^  Statements  of  general  history  or  geography 

^  Statements  contained  in  a  book  of  original 
entry 

^  Judgments 

>  Opinion 

'  Of  experts 


Of  others  as  to  whether  two  persons  are  or 
are  not  married 

Character 

V.  Exceptions  in  criminal   and  in    civil  cases 
respectively 


TABLE 
X 

XI 

XII 
XUI 
XIV 

XV 
XVI 

XVII 

XVIII 
XIX 

XX 

XXI 

XXI 

XXII 

XXIII 


Second  Part— On  Proof. 


TABI.B 

RULES    CONCERNING   PROOF XXIV-XXXIV 


"  Proof  otherwise  than  by  evidence 


[ 


Bi/ judicial  notice 

By  agreed  admissions 

proof  by  evidence 

By  oral  evidence 

""  By  documentary  evidence 

^  Proof  of  execution  of  documents    .... 

"  Proof  of  contents  of  documents 

r  Proof  of  contents  of  public  documents    .    . 

I 

}  Presumptions  as  to  documents 


Of  the  exclusion   of  oral   by  documentary 
evidence 


By  real  evidence 


XXIV 

XXV 

XXVI 

XXIV 

XXVII 

XXVIII 

XXIX 

XXX 

XXXI 

XXXII 

XXXIII 
XXXIV 


Third  Part— Production  and  Effect  of  Evidence. 


TABLE 
RULES  CONCERNING  THE  PRODUCTION  AND  EFFECT 

OF    EVIDENCE XXXV-XLIII 


The  Burden  of  Proof 

I  Affected  hy  presumption 

Affected  hy  estoppel 

'  Persons  not  competent  to  testify 

'  Persons  not  compellable  to  testify  .... 

Persons  not  permitted  to  testify      

\  Taking  oral  evidence  in  Court  or  out  of 
Court,  upon  oath,  etc 

Examination  of  witnesses 


"^  New  trial — when  not  granted  for  improper 
admission  or  rejection  of  evidence   .   . 


XXXV 

XXXVI 

XXXVII 

XXXVIII 

XXXIX 

XL 

XLI 
XLII 

XLIII 


FIRST  PART. 


RELEVANCY. 


TABLE  I. 

First  Rule  of  Inclusion,     [Applicable  generally.]     Art.  2. 
EVIDENCE    MAY   BE   GIVEN 

>■  Of  any  fact  in  issue/ 
Of  any  fact  relevant  to  any  fact  in  issue.' 


^If  the  issue  be  a  triable  one,  evi- 
dence of  the  existence  or  non-existence  of 
any  fact  in  issue  may  always  be  given.  "  I 
know  of  no  case  in  which  a  fact  in  issue, 
or  relevant  to  an  issue,  which  the  Court  is 
bouad  to  try  can  be  excluded  merely  be- 
cause it  would  pain  some  one  who  is  a 
stranger  to  the  action. "     S.  Dig. ,  Note  II. 

*For  definition  of  the  word  "  relevant  " 
see  Art.  1.  In  this  rule  it  is  affirmed 
broadly  that  evidence  may  be  given  of  any 
fact  which  is  relevant.  The  Tables  which 
follow  relate  to  the  relevancy  or  irrele- 
vancy of  particular  facta. 


The  distinction  indicated  by  Stephen, 
between  facts  which  are  relevant  or 
irrelevant,  and  facts  which  are  deemed  to 
be  the  one  or  the  other,  will  not  be  re- 
garded in  any  of  these  Tables.  What  is 
deemed  by  the  law  is,  in  the  study  of  the 
law,  to  be  accepted  as  unquestionable. 
The  proviso  of  Art.  2  really  modifies  the 
definition  of  relevancy  (Art.  1) ;  for  any 
fact  which  is  "  too  remote  to  be  material" 
— which  furnishes  but  a  fanciful  analogy 
or  conjectural  inference  (1  Taylor  Ev.,  Sec. 
298-239),  may,  practically  speaking,  be 
said  to  be  irrelevant. 


TABLE   II. 

Second  Rule  of  Inclusion.     [Applicable  generally.]     Arts.  3,  8. 
EVIDENCE  MAY  BE  GIVEN 


Of  facts  which  form  part  of  the  same  transaction 
as  the  facts  in  issue/ 

Of  facts  which  form  part  of  any  fact  which  may- 
be proved.' 


*  The  last  paragraph  of  Art.  3  is  omitted 
from  this  Table,  because  the  decisions 
cited  by  Stephen,  though  they  support  its 
statement  of  the  law,  do  not  appear  to  be 
founded  on  the  doctrine  of  res  gestae. 
Jones  V.  Williams,  2  M.  &  W.,  326  ( 1837)  ; 
Doe  V.  Kemp,  2  Bing.  N.  C,  (29  Eng. 
C.  L.  102),  (1835).      See  Table  IX,  note  2. 

'  The  first  paragraph  of  Art.  8  is  here 
brought  into  association  with  Art.  3,  in 
order  more  fully  to  present  the  res  gestce 
rule.  The  principle,  which  Art.  3  applies 
only  to  facts  in  issue,  is  qualifiedly  extended 
by  that  paragraph  of  Art.  8  to  any  act  which 
may  be  proved  ;  but  it  is  thought  that  for 
the  word  "  act  "  in  Art.  8,  the  word  "  fact " 
may  properly  be  substituted,  and  that  the 
doctrine  of  res  gestce  is  applicable  to  evi- 


dential facts  as  well  as  to  those  in  issue 
although  where  the  main  fact  is  merely  a 
provable  one  the  admissibility  of  other 
facts  as  subsidiary  to  it  is  subject  to  special 
limitation.  Art.  8  and  Note  V.  It  is 
requisite  only  that  there  shall  be  "some 
main  fact  or  act,  which  is  itself  admissible 
in  evidence."  Lund  v.  Tyngsborough,  9 
Cush.,  44,  (1851).  "Where  any  facts 
are  proper  evidence  upon  an  issue,  all  oral 
or  written  declarations  which  can  ex- 
plain such  facts  may  be  received  in  evi- 
dence." Wright  V.  Doe,  4  Bing.  N.  C, 
548  (33  Eng.  C.  L.,  852),  (1838).  "  De- 
clarations which  are  the  immediate  accom- 
paniments of  an  act  are  admissible  as  part 
of  the  res  gestce."  Wharton  Ev.,  Sec. 
262.     See  Note  to  Table  III. 


TABLE   III. 

Third  Rule  of  Inclusion.     [Applicable  generally,]     Art.  9. 

EVIDENCE  MAY  BE  GIVEN 
I 

^Of  facts  which  are  necessary  to  be  known  and  in 
so  far  as  they  are  necessary  to  be  known/ 

To  introduce  or  explain  any  fact  in  isme  or  relevant  to  the  issue. 

To  support  or  rebvi  an  inference  suggested  by  any  such  fact. 

>  To  establish  the  identity  of  any  person  or  thing  whose  identity  is 
in  issue  or  is  relevant. 


>■  To  fix  the  time  or  place  at  which  any  fact  in  issue  or  relevant  fact 
happened. 

>  To  show  that  any  document  produced  is  genuine  or  otherwise. 

To  show  the  relation  of  the  parties  by  whom  any  fact  in  issue  or 
relevant  fact  was  transacted. 

To  show  opportunity  for  the  occurrence  or  transadion  of  any  such 
fact. 

To  show  the  relevancy  of  other  fads. 


*  Article  2  states  the  general  proposition  poses  enumerated  in  this  Table  are  rele- 

that  "  evidence  may  be  given  .    ,    .  of  any  vant.       In  like  manner,  Arts.   3   and  8 

fact  relevant  to  any  fact  in  issue."      And  (Table  II)  specify  that  facts  which  form 

in    this  Article  (9)    we   have    the  more  part.ot  the  same  transaction   as  the  facts 

particular  statement  that  facts  which  are  in  issue,  or  of  a  provable  fact,  are  relevant, 
necessary  to  be  known  for  any  of  the  pur- 


TABLE  IV. 

Fourth  Rule  of  Inclusion.     [Applicable  specifically.]  Arts.  7,  8.^ 
EVIDENCE  MAY  BE  GIVEN 


i 


When  there  is  a  question  whether  any  act  was 
done  by  any  person.     Art.  7. 

"  Of  any  fact  which  supplies  a  motive  for  such  an  act. 

>•  Of  any  fact  which  constitutes  preparation  for  it. 

>  Of  any  fact  which  shows  subsequent  conduct  of  such  person  ap- 
parently influenced  by  the  doing  of  it. 

Of  any  fact  which  shows  any  act  done  in  consequence  of  the  act 
by,  or  by  authority  of,  such  person. 

^  When  a  person's  conduct  is  in  issue  or  is  relevant 
to  the  issue.     Art.  8. 

I 

L  Of  any  statements  made  in   the  presence  and    hearing   of  such 
person  by  which  his  condu^  is  likely  to  have  been  affected. 


1  The  obvious  similarity  of  "a  question      duct."     (Art.  8— last  paragraph )  has  sug* 
whether  auy  act  was  done  by  any  person  "      gested  their  joinder  in  this  Table. 
(Art.  7)  to  an  issue  as  to  "a person's  con- 


TABLE    V. 

Fifth  Rule  of  Inclusion.     [Applicable  specifically.]     Art.  4. 
EVIDENCE  MAY  BE  GIVEN 

^  In  cases  in  which  the  existence  of  a  conspiracy  is 
in  issue  or  is  provable 

^  Oj  everything  said,  done,  or  vrritten  by  any  one  of  several 
conspirator  i  in  the  execution  or  furtherance  of  their  common  pur' 
pose  as  against  each  of  them.  ^ 


*6at  statement?  ns  to  measares  taken 
(t.  e.  narratives  of  things  past)  in  the  exe- 
cution or  furtherance  of  any  such  common 
purpose  (not  in  effecting  it,  but  in  conse- 
qnence  of,  or  arising  out  of  it,  R.  v.  Blake, 
6  Ad.  &  El.,  N.  S.,  137  (51  Eng.  C.  L.), 
(1844),)  are  not  relevant  as  such  against  anj 


conspirators,  except  those  by  whom  or  in 
whose  presence  such  statements  are  made. 
The  judge  must  first  be  satisfied  apart  from 
such  acts  and  statements,  that  there  are 
prima  facie  grounds  for  believing  in  the 
existence  of  the  conspiracy  to  which  they 
relate.     Art.  4. 


TABLE  VI. 

Sixth  Rule  of  Inclusion.     [Applicable  specifically.]     Art.  5. 

EVIDENCE  MAY  BE  GIVEN 

In  cases  in  which  the  existence  of  any  right  of  or 
over  property  is  in  question 

Of  every  fact  which  constitutes  the  title  of  the  person  claiming  the 
right.  ^ 

*■  Of  every  fact  which  shows  that  he,  or  any  person  through  whom  he 
claims,  was  in  possession.  ' 

Of  every  fact  which  constitutes  an  exercise  of  the  right,  or  which 
shows  that  its  exercise  was  disputed ;  or  which  is  inconsistent 
with  its  existence  or  renders  its  existence  improbable. ' 


existence,  of  the  right  the  existence  of 
»  Facts  in  lanie.     See  Table  I.  ^j^j^j^  j^  ^^^^^^^  ^^^  ^^^  ^^^^  ^i j^  ^^^  j^. 

*  Facts  relevant  to  the  issue.  Ibid.     They      nied  on  the  other.     See  definition  of  re- 
render  probable  the  existence  or  the  non       levant.    Art.  1. 


11 


TABLE  VII. 
Seventh  Rule  of  Inclusion.     [Applicable  specifically.]     Art.  6. 

EVIDENCE  MAY  BE  GIVEN 

'-In  cases  in  which  the  existence  of  any  custom  is 
in  question 

^  Of  every  fact  which  shows  how,  in  particular  ijisianees,  the  eiistom 
was  understood  and  acted  upon  by  the  parties  then  interested.  ^ 


ifieeBlackstoneCom.,  Book  T   (Share.      bnrgh   Ins.    Co.,    95    Pa.    St.,    348-356, 
Ed.),  79,  note  21 ;    and  Adama  v.   Pitta-      (1880). 


18 


TABLE  VIII. 

Eighth  Rule  of  Inclusion.     [Applicable  specifically.]     Art.  8.^ 
EVIDENCE  MAY  BE  GIVEN 

^  In  criminal  cases  of  rape. 

^w  Oj  the  conduct  of  the  person  against  whom  the  offence  is  said  to 
have  been  committed,  and,  in  particular  of  the  fact  that  soon 
after  the  offence,  she  made  a  complaint  (but  not  the  terms 
thereof  ')  to  persons  to  whom  she  would  naturally  complain. ' 


*  Second  paragraph. 

*See,  however,  Note  V.,  of  Stephen's 
Appendix,  and  also  the  note  of  the  Ameri- 
can Editor  on  the  second  paragraph  of 
Art.  8. 


'  And  of  her  generally  immoral  charac- 
ter, etc.  See  Art.  134,  and  note  4  to  Table 
XLII. 


15 


TABLE  IX. 

First  Rule  of  Exclusion.     Art.  lo. 


EVIDENCE  MAY  NOT  BE  GIVEN 


I 


Of  a  fact  which  renders  the  existence  or  non- 
existence of  any  fact  in  issue  probable  by  reason 
of  its  general  resemblance  thereto,  and  not  by 
reason  of  its  being  connected  therewith  in  any 
of  the  ways  specified  in  the  rules  of  inclusion, 
except  in  cases  where  some  permissible  infer- 
ence relevant  to  the  issue  may  be  drawn  from 
such  fact.'  ' 


*The  so-called   exceptions  to   this  rule 
are  uot  fully  presented  in  Articles  11,  12 
and  13  ;    but  the  principle  upon  which 
they  all  rest  is  here  stated,  and  may  be  illus- 
tratively indicated  thus:   The  rule  *' Res 
inter  alios  acta,"  etc,  does  not  include  any 
fact   from  which  a  material   inference  is 
permissible,  as  when  there  is  a  question 
(a)  Whether  a  person  said  or  did  some- 
thing.    The  fact  that   he  said   or  did 
something  of  the  same  sort  on  a  different 
occasion,  if  it  shows  the  existence  on  the 
occasion  in  question  of  any  state  of  mind 
or  of  body  or  bodily  feeling,  the  exist- 
ence of  which  is  in  issue  or  is  relevant. 
Art.  •  11. 
(6)  Whether  an  act  was  accidental  or  in- 
tentional.   The  fact  that  such  act  formed 
part  of  a  series  of  similar  circum-stances, 
in  each  of  which  the  person  doing  the 
act  was  coftcerned.     Art.  12. 
(c)    Whether  a  particular  act   was  done. 
The  fact  that  a  course  of  office  or  busi- 
ness existed  according  to  which  it  natur- 
ally would  have  been  done.   Art.  1.3.   [It 
is  under  this  head  that  Taylor,  in  his 
work,  on  Evidence  (Chap.  12,  Sees.  709- 


641),  mentions  that  in  the  United  States 
entries  made  by  the  party  himself  iu  his 
own  shop  books  are,  subject  to  well  set- 
tled restrictions  and  conditions,  received 
in  evidence.  We,  however,  deem  it 
more  exact  to  treat  the  admission  of  such 
entries  as  an  exception  to  that  part  o( 
Hearsay  Rule  which  excludes  statements 
contained  in  any  book,  etc.,  and  accord- 
ingly, it  has  been  classed  as  one  of  the 
exceptions  to  that  rule,  and  is  dealt  with 
in  Table  XVIII.]. 
{d)  Whether  a  particular  person  held  a 
particular  public  offii.e.  The  fact  that 
he  acted  in  that  office.  Art.  13. 
(e)  Whether  one  person  acted  as  agent  for 
another  on  a  particular  occasion.  The 
fact  that  he  so  acted  on  other  occasions. 
Art.  13. 

*  The  decisions  upon  which  the  last  par- 
agraph of  Art.  3  (See  Table  II.  u.  1) 
is  based,  seem  not  to  be  founded. on  the 
doctrine  of  res  gestae,  but  upon  the  prin- 
ciple stated  above  (n.  1),  that  the  rule  pre- 
sented in  this  Table  does  not  exclude  any 
fact  from  which  a  material  inference  is 
permissible. 


17 


TABLE  X. 

Second  Rule  of  Exclusion.     Art.  14. 

EVIDENCE  MAY  NOT  BE    GIVEN 

I 

^  Of    the   fact    that  a   statement   was   made   by   a 
person  not  called  as  a  witness.' 

Of  the  fact  that  a  statement  is  contained  or  re- 
corded in  any  book,  document,  or  record  what- 
ever, proof  of  which  is  not  admissible  on  other 
grounds.' 


^Theexceptions  to  this  part  of  the  Hear-  'The  exceptions    to  this  part  of   the 

say  Rule  are  separately  presented  in  Tables      Hearsay  Rule  are  separately  presented  in 
XI,  XII,  XIH  and  XIV.  Tables    XV,    XVI,  XVH,   XVIII    and 

XIX. 


19 


TABLE  XI. 

First  Exception  to  Second  Rule  of  Exclusion/    Arts.  15-20. 

THE  HEARSAY  RULE  DOES  NOT  EXCLUDE 

I 

^Admissions*  made  on  behalt  of  the  real  party  to 
any  proceeding.' 

I 

>•  By  any  nominal  party  thereto.*- 

>■  By  any  person  who  has  a  substantial  interest  in  the  event.' 

y  By  any  person  who  is  privy  in  law,  in  blood  or  in  estate  to  any  party 
to  the  proceeding.^ 

By  any  agent  authorized  to  make  them,  either  expressly  or  by  the 
conduct  of  his  principal.^ 


1  Table  X. 

'  An  admission  is  a  statement,  oral  or 
written,  suggesting  any  inference  as  to  any 
fact  in  issue  or  relevant  ...  to  any 
such  fact,  made  by  or  on  behalf  of  any 
party  to  any  proceeding  ;  Art.  15. 

'  An  admission  made  at  any  time  by  the 
real  party  himself  is,  of  course,  admissible, 
unless  he  is  suing  or  sued  in  a  represen- 
tative character  only,  in  which  case  the 
statement  must  have  been  made  whilst  he 
sustained  that  character.  Art.  16.  State- 
ments by  strangers  to  a  proceeding  are 
not  relevant  as  against  the  parties ;  but 
see  Art.  18.  No  admission  is  relevant  in 
any  civil  action  if  made  without  prejudice 
or  under  duress.    Art.  20. 


*  Where  the  assignee  of  a  chose  in  action 
may  and  does  sue  in  his  own  name,  he  ia 
not  affected  by  statements  of  the  assignor 
made  after  assignment ;  and  the  rule  in 
the  United  State-»  seems  to  be  generally  the 
same  even  where  the  assignee  is  required 
to  sue  in  the  name  of  the  assignor. 

*  If  made  during  tlie  continuance  of  the 
interest  which  entitles  him  to  make  it. 
Art.   16. 

*  Including  partners  and  joint  contractors, 
with  respect  to  partnership  transactions, 
or  joint  contracts ;  and  lawyere  in  the 
actual  management  of  their  clients'  causes. 
Art.  17.  And  also  any  person  expressly 
referred  to  for  information.     Art.  19. 


21 


TABLE   XII. 

Second  Exception  to  Second  Rule  of  Exclusion/    Arts.  21-24. 

THE  HEARSAY  RULE  DOES  NOT  EXCLUDE 

Confessions '  made  without  inducement,  threat  or 
promise  ^  proceeding  directly  or  indirectly  from 
a  person  in  authority,  including 

The  prosecutor. 

Officers  of  justice  having  the  prisoner  in  custody. 

Magistrates,  and  other  persona  in  similar  positions. 


I  Table  X. 

'  A  confession  is  an  admis^iion  made  at 
any  time  bj  a  person  charged  with  a  crime 
stating  or  suggesting  the  inference  that 
he  committed  that  crime;  Art.  21. 

'  Having  reference  to  the  charge  against 
the  accused  person,  and  giving  liim  reason- 
able grounds  for  supposing  that  by  making 
a  confession  he  would  gain  some  advantage 
or  avoid  some  evil  in  reference  to  the 
proceedings  against  him.      A  confession 


made  after  the  complete  removal  of  the 
impression  produced  by  any  inducement, 
threat  or  promise  is  provable ;  and  fact<j 
discovered  in  consequence  of  confessions 
improperly  obtained,  and  so  much  of  such 
confessions  as  distinctly  relates  to  such 
facts,  may  be  proved.  Art.  22.  As 
to  confessions  admissible  though  made 
upon  oath,  etc.,  see  Art.  23  ;  or  though 
obtained  by  promise  of  secrecy,  or  by  decep- 
tion, etc.,  see  Art.  24. 


28 


TABLE  XIII. 
Third  Exception  to  Second  Rule  of  Exclusion.^    Arts.  25-31. 

THE  HEARSAY  RULE  DOES  NOT  EXCLUDE 

^  Statements '  written  or  verbal  of  facts  in  issue  or 
relevant  to  the  issue,  if  the  person  who  made 
the  statement'  is  dead.     Art.  25. 

When  the  declaration  was  aa  to  the  cause  of  the  declarants  deaih^ 
or  as  to  any  of  the  circumstances  of  the  transaction  which  resulted 
in  his  death.  *  Art.  26. 

*  When  the  declaration  was  made  in   the  ordinary  course    of  the 
declarant's  buMness,  or  in  the  discharge  of  a  professional  duty.' 
Art  27. 

When  the  declaration  was  opposed  to  the  pecuniary  or  proprietxiry 
interest  of  the  declarant.*  Art.  28. 

When  the  declaration  toas  as  to  the  declarant's  testamentary  intenr 
tions,  or  as  to  the  contents  of  his  wilU      Art.  29. 

I  When  the  declaration  related  to  the  existence   of  any  public  or 
general  right  or  custom  or  mutter  of  public  or  general  interest.^ 
Art.  30. 

^  Whe7i  the  declaration  relaied  to  the  existence  of  any  relationship 
between  persons,  whether  living  or  dead,  or  to  the  birth,  marriage, 
or  death  of  any  person,  by  which  such  relationship  was  co?i- 
stituted,  or  to  the  time  or  place  at  which  any  such  fact  occurred, 
or  to  any  fact  immediately  connected  with  its  occurrence.'  Art.  31. 


» Table  X.  » Hereafter    called     the     "declarant" 

"  Hereafter  called  ' '  declarations."  Such  declarations  may  be  contradicted,  and 

24 


the  credit  of  the  declarant  may  be  im- 
peached or  confirmed,  ia  the  manner 
stated  in  Art.  135. 

*  Only  in  trials  for  the  murder  or  man- 
slaugliter  of  the  declarant ;  and  only  when 
he  is  shown  to  have  been  in  actual  danger 
of  death,  and  to  have  given  up  all  hope  of 
recovery  at  the  time  of  making  the  declara- 
tion.    Art.  26. 

*  Such  declarations  must  have  been  made 
at  or  near  the  time  when  the  matter  stated 
occurred,  and  of  the  declarant's  own 
knowledge;  and  are  relevant  in  so  far  only 
as  they  relate  to  the  matter  which  the 
declarant  stated  in  the  ordinary  course  of 
his  business  or  duty.     Art.  27. 

'  If  the  declarant  had  peculiar  means  of 
knowing  the  matter  stated,  and  had  no 
interest  to  misrepresent  it.  The  whole  of 
any  said  declaration,  and  of  any  other 
statement  referred  to  in  it,  is  relevant, 
altliough  matters  may  be  stated  which 
were  not  against  such  interest;  but  state- 
ments not  referred  to  in,  or  necessary  to 
explain,  such  declarations,  though  made  at 
the  same  time,  or  recorded  in  the  same 
place,  are  not  relevant.  Art.  28.  For 
special  applications  of  this  Article,  see  its 
paragraphs  following  the  first.  The  final 
one  but  repeats,  in  negative  form,  that  the 
interest  of  the  declarant  to  which  the  dec- 
laration is  opposed  must  be  a  pecuniary  or 
proprietary  one. 

^  In  the  following  cases  : 
(a)  When  his  will  has  been  lost,  and  there 
is  a  question  as  to  what  were  its  contents. 
(6)  When  the  question  is  whether  an  ex- 
isting will  is  genuine  or  was  improperly 
obtained, 
(c)  When  the  question  is  whether  any  and 


which  of  more  existing  documents  than 
one  constitute  his  will.  In  all  these 
cases  it  is  immaterial  whether  the  decla- 
rations were  made  before  or  after  the 
making  or  loss  of  the  will.  Art.  29. 
*Such  declarations  may  be  made  in  any 
form  and  manner.  Art.  30.  They  mubt 
have  been  made  before  the  question  to 
which  they  are  related  had  arisen,  but  they 
may  have  been  made  to  prevent  its  arising. 
Art.  31.  Declarations  as  to  particular 
facts  from  which  the  existence  of  any  Bucli 
right  or  matter  may  be  inferred  are  irrele- 
vant. Art.  30.  Declarations  as  to  public 
rights  are  relevant  whoever  made  them. 
As  to  general  rights  it  must  appear  or  be 
shown  that  the  declarant  had  competent 
means  of  knowledge.  A  public  right,  and 
a  general  right  or  custom  defined.  Art.  30, 
'Such  declarations  may  express  either 
the  personal  knowledge  of  the  declarant,  or 
information  given  to  him  by  others,  pro- 
vided those  others  were  themselves  quali- 
fied to  be  declarants.  They  may  be  made 
in  any  form  and  in  any  document  or  upon 
any  thing  in  which  statements  as  to  rela- 
tionship are  commonly  made.  Art.  31- 
Pedigree  must  be  in  issue.  [But  see  In- 
surance Co.  V.  Kosenagle,  77  Pa.,  607 
(1875)].  The  declarant  must  be  legitim- 
ately related  by  blood  [or  marriage,  Tay- 
lor Ev.,  Sec.  635-571 ;  Ins.  Co.  v. 
Schwenck,  94  U.  S.,  598  (1876)  ],  to  the 
person  to  whom  the  declaration  rela  es,  or 
to  the  husband  or  wife  of  such  a  person. 
Such  declarations  must  have  been  made 
before  the  question  to  which  they  are  re- 
lated had  arisen,  but  they  may  have  been 
made  to  prevent  its  arising.     Art.  31. 


26 


TABLE  XIV. 


Fourth  Exception  to  Second  Rule  of  Exclusion.*    Art.  32. 


THE  HEARSAY  RULE  DOES  NOT  EXCLUDE 


Evidence  given  by  a  witness  in  a  previous  pro- 
ceeding, or  in'  an  earlier  stage  of  the  same 
proceeding. 


When  the  witness  is  dead,  or  is  mad,  or  is  so  ill  thai  he  will  probably 
never  be  able  to  travel, 

►  When  he  is  kept  out  of  the  way  by  the  adverse  party. 

When  he  is  out  of  the  jurisdiction  of  the  Court.  ' 

When  he  cannot  be  found.  ' 

''  Provided,  in  all  cases,  that  the  person  against  vrhom  the 
evidence  is  to  be  given  had  the  right  and  opportunity 
to  cross-examine  the  declarant  when  he  was  examined 
as  a  witness ;  and  that  the  questions  in  issue  were 
substantially  the  same  in  the  first  as  in  the  second 
proceeding. 

>•  Provided,  in  civil  cases,  that  the  proceeding  was  between 
the  same  parties  or  their  representatives  in  interest. 

Provided,  in   criminal  cases,   that  the  same  person  is 
accused  upon  the  same  facts. 


» Table  X. 

t  In  civil,  but  not,  it  seems,  in  criminal 
cases.     Art.  32. 

•Perhaps  in  civil,  but  not  in  criminal 
cases.     Ibid. 

These  notes  (  2  and  3  )  are  in  the 
words    of  Stephen,  but,  as   is   remarked 


by  his  American  Editor  in  a  note  to 
this  article,  there  is  much  difference  of 
decision  by  the  courts  of  the  several  States 
upon  the  general  subject  of  the  disabilities, 
other  than  the  death  or  insanity  of  the 
witness,  which  will  admit  his  former  testi- 
mony.    See  the  cases  there  cited. 


27 


TABLE  XV. 

Fifth  Exception  to  Second  Rule  of  Exclusion.^    Art.  33. 
THE  HEARSAY  RULE  DOES    NOT  EXCLUDE 

-  Statements  of  any  act  of  state  or  of  any  fact  of 
a  public  nature  which  is  in  issue  or  relevant. 

[ 

When  made  in  a  recital  contained  in  a  public  statute. 
When  contained  in  any  proclamation  of  the  Executive. 

V  When  contained  in  State  papers  communicated  by  the  Executive  to 
the  Legislature,  or  published  under  public  authority. 

When  contained  in  legislative  journals  or  resolutions  * 


law,  the  note  of  the  Editor,  which  refers 
1  Table  X.  ^^  Qj.  ^^  j^  g^^  49^^  ^^^  ^^  several  re- 

•  In   adapting  this  article  to  American       ported  cases,  has  been  followed. 


29 


TABLE  XVI. 
Sixth  Exception  to  Second  Rule  of  Exclusion.*    Art.  34. 
THE  HEARSAY  RULE  DOES  NOT    EXCLUDE 

^  Statements  of  facts  in  issue  or  relevant,  made 
for  the  purpose  of  being  referred  to  by  the 
public. 

^  When  contained  in  any  record,  official  book  or  register  kept  in  the 
United  States,  or  in  any  country  subject  to  the  jurisdiction  thereof^ 
or  at  sea,  or  in  any  of  the  States,  or  in  any  foreign  country.  * 

^  Provided  the  entry  thereof  was  made  in  proper  time  by 
a  person  in  the  discharge  of  a  duty  imposed  upon 
him  by  the  law  of  the  place  in  which  such  record, 
book  or  register  is  kept. 


'  Table  X.  from  only  for  the  purpose  of  adapting  his 

'The  text  of  Stephen  has  been  departed      statement  of  the  law  to  this  country. 


81 


TABLE  XVII. 

Seventh  Exception  to  Seconu  Rule  of  Exclusion.*    Art.  35. 

THE  HEARSAY  RULE  DOES  NOT  EXCLUDE 


I 


Statements  as  to  matters  (a)  of  general  history, 
or  {d)  of  geography,  in  issue  or  relevant  to  the 
issue. 

(a)  When  made  in  accredited  historical  books  * 

(b)  When  made  in  maps  or  charts  published  for  pvblic  sale.  * 


»  Table  X.  »  Only  as  to  matters  of  public  notoriety, 

'  But  statements   in  such   works   as   to  and  such  as  are  usually  represented  in  such 

private  rights  or  customs  are   irrelevant.  maps  or  charts  and  likely  to  be  accurately 

Art.  35.  stated.     Jbid. 


TABLE   XVIII. 

Eighth  Exception  to  Second  Rule  of  Exclusion. ^    (Inserted.) 
THE  HEARSAY  RULE    DOES  NOT  EXCLUDE 

^  Statements  contained  in  a  properly  authenticated 
book  of  original  entries/ 

When  they  consist  of  entries  of  goods  sold  and  delivered. ' 
When  they  consist  of  entries  of  work  done ' 


» Table  X. 

'See  American  Editor's  note  to  Art.  27, 
and  cases  cited.  The  form  or  name  of  the 
book  is  immaterial,  if  it  be  in  fact  a  book 
of  original  entry.  Hoover  v.  Gehr,  62 
Pa.,  136  (1869);  and  entries  promptly 
made  from  a  blotter,  from  memorandum 
slips,  or  from  a  slate,  are  to  be  considered 
original,  Barker  v.  Haskell,  9  Gush.  218 
(1852).  The  authorities  are  not  harmon- 
ious as  to  the  time  within  which  the  en- 
tries must  be  made  from  the  memorandum 
slips,  etc.  In  Forsythe  v.  Norcross,  5 
Watts,  432  (1836),  entries  were  held  inad- 
missible where  it  appeared  that  they  had 
been  transcribed  from  a  slate,  four,  five  or 
six  days  after  they  had  been  made ;  while, 
on  the  other  hand,  they  have  been  held 
admissible  where  the  transcribing  was  done 


four  weeks  after  they  had  been  made  on 
a  slate;  Hall  v.  Glidden,  39  Me.,  445 
(1855)-,  Redlich  v.  Bauerlee,  98  Ills., 
134  (1881). 

^The  entries  must  be  made  at  or  near 
the  time,  but  not  before,  the  delivery  of  the 
goods,  or  the  doing  of  the  work ;  Laird  v. 
Campbell,  100  Pa.,  165  (1882).  They 
may  have  been  made  by  the  party  himself 
in  his  own  book,  and  are  admissible, 
although  he  be  living  at  the  time  of  the 
trial.  But  when  he  is  a  competent  witness 
the  book  is  regarded  as  merely  supplement- 
ary to  his  own  testimony;  Nichols  v. 
Haynes,  78  Pa.,  174  (1875).  The  amount 
for  which  such  an  entry  is  admissible  must, 
it  is  said,  be  reasonable,  but  no  precise 
limit  has  been  established  ',  Corr  i'.  Sellers, 
100  Pa.,  169  (1882). 


35 


TABLE  XIX. 

Ninth  Exception  lO  Second  Rule  of  Exclusion/    Arts.  39-47. 
THE  HEARSAY  RULE  DOES  NOT    EXCLUDE 


I 


Judgments '  of  the  Courts  of  the  United  States, 
or  of  any  of  the  States  or  Territories,  or  of  the 
District  of  Columbia,  or  such  of  the  judgments 
of  Courts  of  foreign  countries  as  can  by  law  be 
enforced  in  this  country,  and  so  far  as  they  can 
be  enforced.^ 

They  are  conclusive  proof 

Of  any  state  of  things  which  they  actually  effect,  when 
the  existence  of  the  state  of  things  so  effected  is  a 
fact  in  issue  or  is  relevant.  *  Art.  40. 

'  Of  facts  directly  in  issue  in  the  case  in  which  the  judg- 
ment was  rendered,  actually  decided  by  the  Court, 
and  appearing  from  the  judgment  itself  to  he  the 
ground  on  which  it  was  based."  Art.  41. 

>  Of  the  facts  on  which  the  condemnation  of  a  ship  as 
prize  is  plainly  stated  upon  the  face  of  the  sentence  of 
the  Court  of  Admiralty  to  have  proceeded."  Art.  42. 

^  Of  the  facts  stated  in  the  judgment,'  when  any  action 
is  brought  against  any  person  for  anything  done  by 
him  in  a  judicial  capacity.  *  Art.  45. 

^  They  are  evidential. 

If  not  pleaded  by  way  of  estoppel. 9  Art.  43. 

If  the  judgment  is  an  admission.  *"  Art.  44. 

^  If  it  relates  to  a  matter  of  public  or  general  interest  so 
as  to  be  a  statement  under  Article  30.     (See  Table 
XIII.)  ^o   Art.  44. 
86 


1  Table  X. 

*"  Judgment "  here  means  any  final 
judgment,  order  or  decree,  as  to  which  the 
party  against  whom  it  is  offered  as  evi- 
dence does  not  prove  that  the  court  which 
gave  it  had  no  jurisdiction,  or  that  it  lias 
been  reversed,  or,  if  he  is  a  stranger  to  it, 
that  it  was  obtained  by  any  fraud  or  col- 
lusion, to  which  neither  he  nor  any  per- 
son to  whom  he  is  privy  was  a  party. 
Arts.  89  and  46. 

8  In  Hilton  v.  Guyot,  159  U.  S.,  113 
(1895),  the  general  subject  of  the  effect  to 
be  given  to  judgments,  domestic  or  foreign, 
was  quite  fully  considered,  and  a  number 
of  questions  pertaining  thereto  were  elabo- 
rately discussed  by  the  Supreme  Court  of 
the  United  States.  The  decision,  however  — 
the  judgment  there  involved  being  a  per- 
sonal and  executory  one,  rendered  by  a 
French  Court — was  made  to  turn  upon  the 
fact  that  the  courts  of  France  do  not  accord 
conclusive  effect  to  judgments  of  the  courts 
of  this  country ;  and  it  was  held  (four  jus- 
tices dissenting)  that  because  of  this  lack 
of  "reciprocity,"  a  judgment  of  a  French 
Court  would  not  be  given  such  effect  in 
the  United  States.  See  also  Ritchie  v. 
McMullen,  159  U.  S.,  235  (1895). 

*  As  against  all  persons.     Art.  40. 

*  As  against  parties  and  privies.  Art. 
41.  Stephen  adds  to  this  statement :  "  Un- 
less evidence  was  admitted  in  the  action 
in  which  the  judgment  was  delivered 
which  is  excluded  in  the  action  in  which 
that  judgment  is  intended  to  be  proved,"' 
citing  B.  V.  Hutchins,  L.  E.,5Q.  B.  D., 
353  (1880)  as  a  recent  illustration  of  this 
principle ;  but  Hilton  v.  Guyot,  159 
U.S.,  113,  casts  some  doubt  upon  its  ac- 
ceptance, at  least  in  all  cases,  by  the  courts 
of  this  country.  In  the  opinion  of  the 
court  in  that  case  (p.  204)  it  was  said :  "  It 
is  next  objected  that  in  those  courts  one 
of  the  plaintiffs  was  permitted  to  testify 
nat  under  oath,  and  was  not  subjected  to 
cross-examination  by  the  opposite  party, 
and  that  the  defendants  were,  therefore, 
deprived  of  safeguards  which  are  by  our 
law  considered  essential  to  secure  honesty 
and  to  detect  fraud  in  a  witness ;  and  also 
that  documents  and  papers  were  admitted 
in  evidence,  with   which  the  defendants 


had  no  connection,  and  which  would  not 
be  admissible  under  our  system  of  juris- 
prudence. But  it  having  been  shown  by 
the  plaintiffs,  and  hardly  denied  by  the 
defendants,  that  the  practice  followed  and 
the  methodof  examining  witnesses  were  ac- 
cording to  the  laws  of  France,  we  are  not 
prepared  to  hold  that  the  fact  that  the 
procedure  in  these  respects  differed  from 
that  of  our  own  courts  is,  of  itself,  a  sufB- 
cient  ground  for  impeaching  the  foreign 
judgment." 

®  As  against  all  persons.  But  statements 
contained  in  judgments  other  than  those 
of  courts  ot  Admiralty  coudemning  a  ship 
as  prize,  as  to  the  facts  upon  which  the 
judgment  is  based  are  irrelevant  as  be- 
tween sti  angers,  or  as  between  a  party  or 
privy  and  a  stranger.     Art.  42. 

"  And  the  proceedings  antecedent  thereto. 
Art.  45. 

8  Whether  the  facts  therein  stated 
are  or  are  not  necessary  to  give  the 
defendant  jurisdiction,  if,  assuming  them 
to  be  true,  they  show  that  he  hnd  jurisdic- 
tion.    Art.  45. 

9  As  between  parties  and  privies,  when- 
ever any  matter  which  was  or  might  have 
been  decided  in  the  action  in  which  it  was 
given  is  in  issue,  or  is  relevant,  in  any 
subsequent  proceeding.  Art.  43.  Stephen 
adds:  "Such  a  judgment  is  conclusive 
proof  of  the  facts  which  it  decides  or  might 
have  decided,  if  the  party  who  gives  evi- 
dence of  it  had  no  opportunity  of  pleading 
it  as  an  estoppel;"  but  the  American  Edi- 
tor correctly  states  that  it  is  held  in  a 
number  of  the  States  of  this  country  that  a 
j  udgment  is  equally  conclusive  when  given 
in  evidence,  as  if  pleaded,  even  though 
there  was  an  opportunity  to  plead  it ;  and 
to  this  eflect,  see  Southern  Pac.  R.  R.  v. 
U.  S.,  168  U.  S.,  1  (1897),  at  page  59. 

1"  Even  as  between  strangers.  But  judg- 
ments are  not  relevant  as  rendering  pro- 
bable facts  which  may  be  inferred  from 
their  existence,  but  which  they  neither 
state  nor  decide,  either  as  between  stran- 
gers, or  as  between  parties  and  privies  in 
suits  where  the  issue  is  different,  or  in 
favor  of  strangers  against  parties  or  privies. 
Art.  44. 


37 


TABLE  XX. 

Third  Rule  of  Exclusion.     Arts.  48-54. 
EVIDENCE  MAY  NOT  BE  GIVEN 

^  Of  the  fact  that  any  person  is  of  opinion  that  a 
fact  in  issue,  or  relevant,  does  or  does  not 
exist.'     Art.  48. 


iThis   is  the   rule,  but   it    is  subject  to      Stephen  are  connectedly  presented  in  Table 
several  exceptioiu.      Those  mentioned  hy      XXI  and  the  notes  thereto. 


39 


TABLE  XXI. 

Exceptions  to  Third  Rule  of  Exclusion.^    Arts.  49-54. 


THE   RULE   THAT   OPINION  IS   GENERALLY   IRRELEVANT   DOES 
NOT  EXCLUDE 


'  The  opinions  of  persons  specially  skilled  in  any 
matter  of  science  or  art '  as  to  which  there  is  a 
point  in  question.     Art.  49. 

^  The  facts  that  two  persons — there  being  a  ques- 
tion whether  they  are  or  are  not  married — co- 
habited and  were  treated  by  others  as  man  and 
wife.^     Art.  53. 


1  Table  XX. 

*Such  persons  are  called  experts,  and 
the  opinions  to  which  they  testify  are 
called  expert  testimony. 

The  judge  in  each  instance  decides 
whether  the  witness  is  entitled  to  be  con- 
sidered as  an  expert.  His  opinion  as  to 
the  existence  of  the  facts  on  which  his 
opinion  b  to  Le  given  is  irrelevant.  Art. 
49.  But  facts  properly  proved,  though 
not  otherwise  relevant,  if  they  support  or 
are  inconsistent  with  his  opinion,  are 
relevant  Art.  50.  And  the  grounds  on 
which  the  opinion  of  any  living  person 
(when  relevant)  is  based  are  also  relevant. 
Art.  54. 

When  there  is  a  question  as  to  a  foreign 
law,  the  opinion  of  experts,  who  iu  their 
profession  [or  who,  though  not  of  the  pro- 


fession, are,  by  reason  of  special  study  or 
experience]  acquainted  with  such  law  are 
the  only  admissible  evidence  thereof ;  but 
they  may  produce  books  of  authority,  etc. 
The  words  "science  or  art "  as  here  used, 
include,  indeed,  all  subjects  on  which  a 
course  of  study  or  experience  is  necessary 
to  the  formation  of  an  opinion,  and  amongst 
others  the  examination  of  handwriting. 
Art.  49.  The  opinion  of  any  person 
(though  not  an  expert)  who  is  acquainted 
with  the  handwriting  of  the  supposed 
writer  of  any  document,  that  it  was  or  was 
not  written  or  signed  by  that  perscm 
is  relevant ;  and  as  to  what  is  deemed  suffi- 
cient to  constitute  acquaintance  with  the 
handwriting  of  another  person,  see  Art  51. 
The  law  respecting  the  comparison  of  hand- 
writings is,  in  Pennsylvania,  established  by 


40 


statute.  Act  of  May  15, 1895,  P.  L.  69,  In 
the  Courts  of  the  United  States  and  of 
several  of  the  States,  where  this  has  not 
been  done,  the  rule  differs  in  one  or  more 
particulars,  from  the  English  rule  as  stated 
by  Stephen.  In  some  of  the  States,  how- 
ever, the  English  rule  is  followed.  Art.  52. 
'  It  is  well  settled  that  proof  of  cohabi- 
tation and  of  repute  unitedly,  do  raise  a 
presumption  of  marriage,  except  in  prose- 


cutions for  bigamy,  proceedings  for  divorce, 
actions  of  erim.  con.,  etc. ;  but,  whilst 
Stephen  has  been  followed  in  presenting 
this  principle  as  an  exception  to  the  rule 
excluding  opinions  it  is  submitted  that  it 
is  not  the  opinion  of  witnesses  as  to  the 
existence  of  marriage,  but  their  testimony 
to  the  facts  of  cohabitation  and  repute, 
which  give  rise  to  the  presumption. 


41 


TABLE  XXII. 

Fourth  Rule  of  Exclusion.     Arts.  55-57. 
EVIDENCE  MAY  NOT  BE  GIVEN 

Of  the  fact  that  a  person  respecting  'whose  con- 
duct there  is  any  inquiry,  is  of  a  particular 
character.^     Art.  55. 


'The  exceptiona  to  this  rule  are  connectedly  presented  in  Table   XXIII  and  the 
notes  thereto 


43 


TABLE  XXIII. 
Exceptions  to  Fourth  Rule  of  Exclusion.^    Arts.  56,  57. 

THE    RULE     THAT     CHARACTER     IS    GENERALLY     IRRELEVANT 
DOES  NOT    EXCLUDE 


'  In  criminal  proceedings 


I 


The  fact  that  the  person  accused  has  a  good  character.'' 

In  civil  cases  (generally) 

I 

'^  The  fact  that  the  character  of  any  party  to  the  action  is  such  as  to 
affect  the  amount  of  damages  which  he  ought  to  received 


»  Table  XXII. 

'  But  the  fact  that  he  has  a  bad  char- 
acter is  irrelevant,  unless  it  is  itself  a  fact 
in  issue,  or  unless  evidence  has  been  given 
that  he  has  a  good  character,  in  which  case 
evidence  that  he  has  a  bad  character  is 
admissible.  The  word  "character,"  as 
here  used,  means  reputation  as  distin- 
guished from  disposition,  and  evidence  may 
be  given  only  of  general  reputation — not 
of  particular  acts.     Art.  56. 

'In  some  civil,  as  well  as  criminal  cases, 
the  character  (reputation)  of  a  party  is  an 


obviously  material  subject  of  inquiry,  and 
where  this  is  so,  evidence  therof  is,  of 
course,  admissible.  In  actions  for  seduc- 
tion and  the  like,  it  has  repeatedly  been 
held  that  evidence  of  the  woman's  reputa- 
tion for  lack  of  chastity  may  be  given ; 
and  in  actions  for  defamation  and  for  mali- 
cious prosecution,  in  which  the  injury  for 
which  redress  is  sought,  is  the  reputation 
of  the  plaintiff,  evidence  of  his  bad  repu- 
tation is,  with  manifest  propriety,  received 
in  mitigation  of  damages.  See  notes  to 
Art.  57. 


45 


SECOND  PART. 


ON  PROOF, 


47 


TABLE    XXIV. 

First  Rule  Concerning  Proof.^    Arts.  58-92. 
RELEVANT  FACTS  MAY  BE  PROVED 

I 

Otherwise  than  by  evidence. 
y  Judicial  Notice.     Arts.  58,  59. 

^  Admissions  agreed  to  at  the  hearing,  or  before  the  hearing  and 
with  reference  thereto,  or  by  the  pleadings.     Art.  60. 

By  evidence. 

I 

I    Oral  Evidence.    Arts.  61,  62. 

[  Documentary  Evidence.    Arts.  63-92. 

^  Real  Evidence  {added). 


*Thi8  rule,  like  the  first  rule  of  relev- 
ancy (Table  I),  is  stated  in  general  terms. 
It  leaves  for  more  particular  statement  the 
specific  rules  relating,  especially,  to  each  of 
the  here  indicated  methods  of  proof.  Ac- 
cordingly,  see   "Judicial  Notice,"  Table 


XXV;  "Admissions  agreed  to,"  etc., 
Table  XXVI;  "Oral  Evidence,"  Table 
XXVII;  "Documentary  Evidence,"  Ta- 
bles XXVIII-XXXIII ;  and  "  Real  Evi- 
dence," Table  XXXIV. 


49 


TABLE  XXV. 


Second  Rule  Concerning  Proof.     Arts.  58,  59. 
RELEVANT    FACTS    MAY    BE    PROVED 


By  judicial  notice  * 


Of  matters  relating  to  the  governments  of  the  United  States 
and  of  the  States  respectively. 


The  public  law  of  the  United  States  or  of  any  State 
whose  law  is  applicable  to  the  proceeding.' 

^  The  political  constitution  and  seal  of  the  United  States 
and  of  the  several  States.' 

^  The  accession,  status  and,  in  some  instances,  the  signa- 
tures of  the  principal  officers  of  the  United  States  and 
of  the  several  States.* 

'  The  existence  of  Congress  and  of  the  State  Legislatures, 
and  the  respective  times  and  places  of  their  ses- 
sions.f. 

'  The  public  Executive  proclamations  and  messages,  and 
the  treaties  of  the  United  States.' 

The  days  of  general  political  elections. 


>■  Of  matters  relating  to  the  particular  court  or  to  other  courts. 


The  particular  court's  own  seal,  rules,  records  and  officers, 
I       and  the  official  status  and  signatures  of  those  officers. 

\  The  existence  of  the  other  United  States  courts,  the  extent 
of  their  jurisdiction,  their  seals  and  their  judges.' 

^  The  courts  of  last  resort  of  the  respective  States.' 
60 


>  Of  matters  relating  to  foreign  nations. 

The  Law  of  Nations. 

■•  The  status  of  the  United  States  with  respect  to  foreign 
countries,  as  of  war,  peace,  amnesty,  etc. 

The  existence  and  title  of  every  State  and  Sovereign 
recognized  by  the  government  of  the  United  States, 
and  its  government,  system  of  courts,  etc. 

^  The  public  seals  of  recognized  foreign  states  when  at- 
tached to  public  official  documents,  and  the  existence 
and  seals  of  their  admiralty  and  maritime  courts. 

Of  matters  of  a  general  character. 

-  The  chief  geographical  facts  and  features  of  the  United 
States  and  of  the  several  States.* 

f  The  occurrence  of  things  which  must  have  occurred 
according  to  the  ordinary  course  of  nature. 

'  The  general  customs  observed  in  the  transaction  of 
business. 

'  Matters  of  common  knowledge  and  experience  within 
their  jurisdiction,  or  of  such  general  and  public 
notoriety  that  every  one  may  be  fairly  presumed  to 
know  them. 

,  Matters  which  any  statute  of  the  United  States  requires 
them  to  notice.' 


*  In  adapting  Articles  58  and  59  to  the 
law  of  this  country,  the  American  notes 
have  been  generally  followed.  It  would  be 
difficult,  if  not  impossible,  to  present  a  list 
of  all  things  which  should  be  judicially 
noticed.  Those  mentioned  in  this  Table 
are  amongst  the  more    important.     The 


general  principle  upon  which  proof  of 
certain  facts  is  dispensed  with  is  that  they 
have  been  already  authoritatively  estab- 
lished, or  that  they  are  of  such  character 
that  the  Court's  knowledge  of  them  may 
properly  be  assumed,  or  are  so  notorious 
that  everyone  may  fairly  be  supposed  to 


51 


know  them.  This  principle  may  readily 
be  related  to  each  of  the  several  matters 
enumerated  in  this  Table,  and  may  be  ap- 
plied in  determining,  in  each  instance, 
what  others  might  properly  be  added  to 
the  list.  Tiie  Table  has  been  prepared 
with  especial  reference  to  the  Fe<leral 
Courts;  the  mo<lifications  necessary  to 
make  it  conform  to  the  re^inirements  of  the 
State  Courts,  are  noted  below. 

*  The  State  Courts  do  not  judicially 
notice  the  law  of  any  other  of  the 
States. 

'  The  State  Courts  require  proof  of  the 
constitution,  as  well  as  of  the  law,  of  the 
other  States. 

*  The  State  Courts  requireproof  of  these 
matters  as  respects  the  other  States. 


*  The  State  Courts  judicially  notic 
executive  proclamations,  etc.,  of  the 
United  States  and  of  the  particular  State 
itself,  but  not  of  the  other  States. 

*  The  State  Courts  judicially  notice  the 
other  Courts,  etc.,  of  the  same  Stiite,  and 
of  the  United  States,  but  not  of  the  other 
States. 

'  Not  applicable  to  State  Courts.  But 
all  Appellate  Courts  will  take  judicial 
notice  of  the  rules  and  methods  of  inferior 
Courts  when  rendering  their  judgments. 

*  To  adapt  to  State  Courts,  substitute 
for  "  and  of  the  several  States,"  the  words, 
"  and  of  the  particular  State." 

'  To  adapt  to  State  Courts,  substitute  for 
the  words  "  Statute  of  the  United  States," 
the  words,  "Statute  of  the  State." 


52 


TABLE   XXVI. 

Third  Rule  Concerning  Proof.     Art.  60. 

RELEVANT  FACTS  MAY  BE    PROVED 

I 

^  By  admissions  agreed  to  at  the  hearing,  or  before 
the  hearing  and  with  reference  thereto,  or  by 
the  pleadings/ 


^The  difference  between  such  admissions  sive,  whilst  those  dealt  with  in  Table  XI, 

(sometimes  called  judicial  or  solemn  ad-  are  merely  evidential.    In  p  trial  for  fel- 

missions)  and  those  which,  notwithstand-  ony,  the  prisoner  can  make  no  conclusive 

ing  the  hearsay  rule,  are  provable,  is  that  admission,  though  a  confession  (Table  XII) 

the  admissions  here  referred  to  are  conclu-  may  be  proved  against  him.     Art.  60. 


53 


TABLE  XXVII. 
Fourth  Rule  Concerning  Proof.     Art.  6i,  62. 

RELEVANT  FACTS  MAY  BE  PROVED 

By  oral  evidence.* 


I 


» All  facts  may  be  so  proved,  subject  to  or  in  any  other  manner,  it  must  be  the 

the  requirements  of  law  as  to  proof  of  evidence  of  a  witness  who  says  he  perceived 

documents.     (Tables  XX VIII-XXXIII),  it  by  that  sense  or  in  that  manner.     If  it 

Art.  61.     Oral  evidence  must  iu  all  cases  be  of  an  opinion,  or  of  the  grounds  on 

whatever  be  direct ;  that  is  to  say,  if  it  be  which  that  opinion  is  held,  it  must  be  the 

of  a  fact  alleged  to  have  been  perceived  by  evidence  of  the  person   who  holds  that 

any  sense  (ex  gr.  of  sight  or  of  hearing),  opinion  on  those  grounds.     Art.  62. 


55 


TABLE   XXVIII. 

Fifth  Rule  Concerning  Proof.     Arts.  63-92. 
RELEVANT  FACTS  MAY  BE  PROVED 

By  documentary  evidence.^ 


JLtJC 

I 


*  Several  matters  auxiliary  to  this  rule,  of  public  documents,  Table  XXXI ;  Pre- 

are  separately  presented  as  follows:  Proof  sumptions  as  to  documents,  Table  XXXII, 

of   the  execution    of  documents,     Table  and     the     parol     evidence    rule,     Table 

XXIX ;   Proof  of  the  contents  of  docu-  XXXIII. 
ments,  Table  XXX  ;  Proof  of  the  contents  ' 


67 


TABLE    XXIX. 

First  Auxiliary  of  the  Fifth  Rule  Concerning  Proof/    Arts.  66-69. 

THE  EXECUTION  OF  DOCUMENTS  MUST  BE  PROVED  3 

Where  there  is  an  attesting  witness  alive,  sane 
and  subject  to  process.'' 

^  By  calling  at  least  one  »uch  vritnesa.*"-  *•  *    Art.  66. 

'  Where  there  is  one  or  more  attesting  witnesses, 
but  none  who  is  alive  and  can  be  found.' 

^  By  2)roof  of  the  signature  of  at  least  one  stick  toUness.  *•  '•  ^  Art.  66. 

^  Where  there  is  no  attesting  witness." 

I 

'^  By  proof  of  the  signature  of  the  person  who  executed  the  document. 
AH.  69. 


» Table  XXVIII. 

•This  applies  to  all  private  documents. 
For  -methods  of  identification  and  proof  of 
genuineness  of  Public  Documents,  see 
notesto  Table  XXXI. 

"  The  distinction  made  by  Stephen  be- 
tween documents  required  by  law  to  be  at- 
tested and  documents  not  required  by  law 
to  be  attested,  b  based  U|X)n  English 
statutory  provisions  which  have  not  been 
generally  enacted  in  this  country,  though 
similar  statutes  exist  in  some  of  the  States, 
and  wliere  they  do,  they  of  course  must  be 


followed.  But  by  the  common  law  which 
is  still  in  force  in  most  of  the  States,  the 
manner  of  proving  the  execution  of  a  doc- 
ument is  made  to  depend  upon  the  actual 
presence,  or  absence,  of  attestation,  and  not 
upon  the  existence  or  non-existence  of  any 
requirement  of  law  upon  the  subject ;  and 
to  this  common  law  rule,  the  present 
Table  conforms. 

*  But  the  person  seeking  to  prove  the 
execution  of  a  document  is  not  bound  to 
call  for  that  purpose  either  the  party  who 
executed  it  or  any  attesting  witness,  or  to 


58 


prove  the  handwriting  of  any  such  party 
or  attesting  witness. 

(1)  When  (but  see  American  note)  an 
admissible  admission  of  its  contents  has 
been  proved,  Art.  64  ; 

(2)  When  (but  see  American  note)  he  is 
entitled  to  give  secondary  evidence  of  its 
contents  because  the  original  is  shown  or 
appears  to  be  in  the  possession  or  power 
o(  the  adverse  party,  who,  after  notice, 
does  not  produce  it.     (Table  XXX) ; 

(3)  When  his  opponent  produces  it  when 
called  upon,  and  claims  an  interest  under 
it  in  reference  to  the  subject  matter  of  the 
suit; 

(4)  When  the  person  against  whom  the 
document   is   sought  to  be  proved    is    a 


public  officer  bound  by  law  to  procure  its 
due  execution,  and  who  has  dealt  with  it 
as  a  document  duly  executed  ; 

(5)  When  the  document  is  an  "  ancient " 
one  (see  Table  XXXII)  Art.  67. 

*  For  cases  to  which  this  rule  extends, 
see  Art.  66. 

^  If  the  attesting  witness  denies  or  does  not 
recollect  the  execution  of  the  document, 
its  execution  may  be  proved  by  other  evi- 
dence.    Art.  68. 

'Stephen  adds  (Art.  66):  "  And  that 
the  signature  of  the  person  executing  the 
document  is  in  the  handwriting  of  that 
person,"  but  generally  in  this  country, 
this  is  not  requisite. 


TABLE  XXX. 

Second  Auxiliary  of  the  Fifth  Rule  Concerning  Proof.* 
Arts.  63-65,  70-72. 


THE  CONTENTS  OF  DOCUMENTS'^  MAY  BE  PROVED 

I 

^  By  primary  evidence.' 

I 

y  The  document  itself.    Art.  64. 

)•  Each  part  of  a  docuirwiU  which  is  executed  in  several  parts.    Art.  64. 

>  Each  counterpart  of  a  document  severally  executed  by  one  or  som^ 
of  the  parties  only.  *  Art.  64. 

Ektch  of  a  number  of  documents  all  made  by  any  process  °  which 
secures  uniformity  in  the  copies.^  Art.  64. 


By  secondary  evidence.' 


Ecamined  copies,  exeynplifications,  office  copies,  and  certified  copies. 
Art.  70. 


.  Other  copies  vnadefrom  the  original  and  proved  to  be  correct.  Art.  70. 

I  Counterparts  of  documents  as  against  the  parties  who  did  not  exe- 
cute them.    Art.  70. 

Oral  accounts  of  the  contents  of  a  document  given  by  some  person 
who  has  himself  seen  it.     Art.  70. 


'Table  XX Vlir.  'The  contents   of   documents    must  be 

*  For  proof  of  contents  of  ptiblie  docu-      proved  by  primary  evidence,  except  in  the 

mmts,  see  Table  XXXI.  following  cases,  where  secondary  evidence 

()0 


may  be  given  (Arts.  65,  71).     When  the 
original 

(a)  is  in  the  possession  or  power  of  the 
adverse  party,  who,  after  due  notice  (see 
below),  does  not  produce  it; 

(b)  is  in  the  possession  or  power  of  a 
stranger  not  l^ally  bound  to  produce  it, 
and  who  refuses  to  do  so  after  service  of 
subpoena,  etc  ; 

(c)  has  been  destroyed  or  lost,  and  proper 
search  has  been  made  for  it ; 

(d)  is  of  such  a  nature  as  not  to  be  easily 
movable,  or  is  in  a  country  from  which 
it  b  not  permitted  to  be  removed  ; 

(e)  has  been  taken  from  the  party  by  fraud, 
so  that  it  cannot  be  procured  ; 

(/)  consists  of  numerous  documents  which 

cannot  conveniently    be    examined    in 

court,  and  the  fact  to  be  proved  is  the 

general  result  of  the  whole  collection ; 

(^)  is  a  document  for  the  proof  of  which 

special  provision  is  made  by  statute ; 
(A)  is  a  public  document.     Art.  71. 

In  case  (a)  secondary  evidence  is  not  ad- 
missible, unless  reasonably  sufficient  notice 
to  produce  the  original  has  been  given, 
except  in  the  following  cases  :  (1)  When 
the  document  to  be  proved  is  itself  a  no- 
tice; (2)  When  the  action  is  founded  upon 
the  assumption  that  the  document  is  in  the 
possession  or  power  of  the  adverse  party, 
and  requires  its  production;  (3)  When  it 
appears  or  is  proved  that  the  adverse  party 
has  secured  possession  of  the  original  from 
a  person  subpoenaed  to  produce  it ;  (4 ) 
When  the  adverse  p^rty  or  his  agent  has 
the  original  in  court. 

In  case  ( b)  a  subpoena  duces  tecum  must 
have  been  served;  if  a  stranger  who  has 


been  so  served,  or  who,  after  having  been 
sworn  as  a  witness,  admits  that  the  docu- 
ment is  in  court,  refuses  to  produce  it  witkoui 
lawful  justification,  secondary  evidence  may 
not  be  given.  Arts.  71,  72.  (See  also,  as 
to  notice  to  produce,  etc.  Table  XLII, 
note  1). 

Case  (e)  is  inserted  by  the  American 
editor  and  authorities  are  cited  by  him  in 
its  support. 

In  case  (/)  evidence  may  be  given  as  to 
the  general  result  of  the  documents  by 
any  person  who  has  examined  them,  and 
who  is  skilled  in  the  examination  of  such, 
documents.     Art.  71.. 

As  to  case  {g)  it  is,  of  course,  that  where 
there  is  a  statutory  provision  prescribing 
(or  permitting)  any  special  method  of' 
proving  the  contents  of  any  document, 
such  provision  must  (or  may)  be  followed. 
Statutes  of  this  kind  are  not  uncommon  ; 
but  they  generally  concern  public  docu- 
ments (case  h)  and  are  more  distinctly  re- 
ferred to  in  Table  XXXI,  which  relates 
especially  to  public  documents.  In  all 
cases,  questions  as  to  the  existence  of  facts 
rendering  secondary  evidence  admissible 
are  to  be  decided  by  the  judge,  unless  in 
deciding  such  a  question  the  judge  would  in 
effect  decide  the  matter  in  issue.    Art.  71. 

*  Each  counterpart  is  primary  evidence 
as  against  the  parties  executing  it.  Art.  64. 

*  E,  g.  by  printing,  lithography,  or  pho- 
tography.     Art.  64. 

6  Each  is  primary  evidence  of  the  con- 
tents of  the  rest ;  but  where  they  are  all 
copies  of  a  common  original,  no  one  of 
them  is  primary  evidence  of  the  contents 
of  the  original.    Art.  64. 


61 


TABLE   XXXI. 

Third  Auxiliary  of  the  Fifth  Rule  Concerning  Proof.*    Arts.  73-84. 

THE  CONTENTS  OF  PUBLIC  DOCUMENTS  MAY  BE  PROVED' 

I 

r  By  production,  from  proper  custody,  and  identifi- 
cation of  the  original."    Art.  74. 

^  By  an  examined  copy.*  "•    Art.  75. 
►  By  an  exemplification.'  "•    Art.  77. 

By  compliance  with  statutory  provisions.*-  '•  Arts. 
76,  79-82. 


» Table  XXVIII. 

>Not  strictly  speaking,  by  secondary 
evidence  as  indicated  in  Art  71  and  in  the 
note  to  table  XXX,  which  follows  that 
article,  but  in  some  one  or  other  of  the 
several  substituted  ways  which  are  here 
stated. 

'This  is  really  primary  evidence:  The 
contents  of  the  document  are  proved  by 
production  of  the  original ;  though  in- 
stead of  accompanying  its  production,  as 
in  the  case  of  a  private  document,  with 
proof  of  execution,  it  is  to  be  shown  that 
it  has  come  from  proper  custody,  and  must 
be  identified  as  being  what  it  professes  to 
be.  Art.  74.  And  whenever  any  book  or 
other  document  is  of  such  a  public  nature 
as  to  be  admissible  in  evidence  on  its  mere 
production  from  the  proper  custody,  and 


no  statute  exists  which  renders  its  contents 
provable  by  means  of  a  copy,  any  copy 
thereof  or  extract  therefrom  is  admissible 
in  proof  of  its  contents,  provided  it  pur- 
ports to  be  signed  and  certified  as  a  true 
copy  or  extract  by  the- officer  to  whose  cus- 
tody the  original  is  intrusted.     Art.  79. 

*  An  examined  copy  is  a  copy  proved  by 
oral  evidence  to  have  been  examined  with 
the  original  and  to  correspond  therewith. 
Art.  75. 

'  An  exemplification  is  a  copy  of  a  record 
set  out  either  under  the  Great  Seal  or 
under  the  Seal  of  a  Court.  It  is  equiva- 
lent to  the  original ;  and  a  copy  made  by 
an  officer  of  the  Court  bound  by  law  to 
make  it,  is  an  exemplification  ;  but  if  such 
officer  is  authorized  by  a  rule  of  court, 
but  not  required  by  law  to  make  it,  it  is 


62 


regarded  as  equivalent  to  an  exemplifica- 
tion only  in  the  same  cause  and  Court. 
Arts.  77,  78. 

•  For  mode  of  proof  of  foreign  written 
laws,  acts  of  state  and  judicial  records, 
see  Art.  84. 

T  As  already  remarked  in  the  note  to 
Table  XXX,    where    there  is  a    statute 


which  prescribes  (or  permits)  any  par- 
ticular method  of  proof,  it  must  (or  may) 
be  followed.  Several  such  statutes,  State 
and  Federal,  are  referred  to  in  Arts.  76,  79- 
84  ;  but  it  is  not  deemed  desirable,  and 
would  scarcely  be  practicable  to  advert  to 
them  with  any  particularity  here. 


TABLE  XXXII. 

Fourth  Auxiliary  of  the  Fifth  Rule   Concerning  Proof.* 

Arts.  85-89. 

IT  IS  PRESUMED 


When  any  document  bearing  a  date  has  been 
proved 

'^  That  the  document  was  made  on  the  day  on  which  it  bears  date,  and 
if  mx)re  than  one  bear  the  same  daie,  that  tfiey  were  executed  in 
the  order  necessary  to  effect  their  intended  object.  '  Art.  85. 

When  any  document  is  not  produced  after  due 
notice  and  call 

'^  That  the  document  had  been  duly  stamped. '  Art.  86. 

When  any  document  purporting  to  be  a  deed  has 
been  signed  and  has  a  seal  upon  it " 

^  Tliat  this  is  the  seal  of  the  party  signing  it.*"  Art.  87." 

When  any  document  purporting  or  proved  to  be 
thirty  years  old  is  produced  from  proper 
custody  ^ 

'^  That  the  handwriting  of  the  signature  and  every  other  part  of  the 
document  is  genuine,  and  in  the  case  of  a  documetit  executed^or 
attested,  that  it  was  duly  executed  and  attested.     Art.  88. 

When  any  document  produced  appears  to  have 
been  altered  or  interlined  * 

Thai  the  alterations  or  interlineations,  if  the  document  is  a  deed, 
were  made  before  the  deed  was  completed.    Art.  89.  • 
64 


L  That  the  alterations  or  interlineations,  if  the  document  is  a  vnll 
were  made  after  the  execution  of  the  vdll.  ^°  Art.  89. 


»  Table  XXVIII. 

*But  independent  proof  of  the  correct- 
ness of  the  date  will  be  required  if  the 
circumstances  are  such  that  collusion  as 
to  the  date  might  be  practised,  and  would, 
if  practised,  injure  any  person,  or  defeat 
the  object  of  any  laws.     Art.  85. 

'Unless  it  be  shown  to  have  remained 
unstamped  for  some  time  after  its  execu- 
tion.    Art.  86. 

*  In  a  form  recognized  aa  valid  by  the 
law  of  a  particular  State ;  and  in  Penn- 
sylvania and  others  of  the  States  a  scroll 
is  all  that  is  necessary ;  Miller  v.  Binder, 
28  Pa.  489  (1857\ 

*  And  upon  proof  of  the  signatures  it  is 
presumed  that  the  instrument  was  duly 
and  regularly  sealed,  and,  when  found  in 
the  possession  of  the  grantee,  that  it  was 
delivered  ;  Pringle  v.  Pringle,  59  Pa.  289 
(1868);  and  also  from  due  acknowledg- 
ment and  recording  delivery  is  presumed  ; 
McCurdy's  Appeal.  65  Pa.  296  (1870) 
Ingles  V.  Ingles,  150  Pa.  397  (1892). 

^  It  has  been  found  necessary  to  depart 
from  Stephen's  statement  of  the  rule  in 
order  to  adapt  this  table  to  the  law  as  it 
exists  in  this  country. 

'  The  judge  decides  whether  or  not  docu- 
ments are  produced  from  proper  custody, 
and  they  are  said  to  be  in  proper  custody 
if  they  are  in  the  place  in  which,  and 
under  the  care  of  the  person  with  whom 
they  would  naturally  be  ;  but  no  custody  is 
improper  if  it  is  proved  to  have  had  a 
legitimate  origin,  or  if  the  circumstances 
of  the  particular  case  are  such  as  to  render 
such  an  origin  probable.    Art.  88. 

8  And  in  the  absence  of  all  evidence 
relating  to  such  alterations  or  interlinea- 
tions. No  person  producing  any  document 


which  upon  its  face  appears  to  have  been 
altered  in  a  material  part  can  claim  under 
it  the  enforcement  of  any  right  created  by 
it,  unless  the  alteration  was  made  before 
the  completion  of  the  document  or  with 
the  consent  of  the  party  to  be  charged 
under  it  or  his  representative  in  interest. 
An  alteration  is  said  to  be  material  when, 
if  it  had  been  made  with  the  consent  of 
the  party  charged,  it  would  have  affected 
his  interest  or  varied  his  obligations  in  any 
way  whatever.  An  alteration  which  in 
no  way  affects  the  rights  of  the  parties  or 
the  legal  effect  of  the  instrument  is  imma- 
terial. The  above  rule  extends  to  cases  in 
which  the  alteration  was  made  by  a 
stranger,  whilst  the  document  was  in  the 
custody  of  the  person  producing  it,  but 
without  his  knowledgeor  leave.  Art.  89. 

There  is  no  presumption  as  to  the  time 
when  alterations  or  interlineations  appear- 
ing on  the  face  of  writings  not  under  seal 
were  made,  except  that  it  is  presumed  that 
they  were  so  made  that  the  making  would 
not  constitute  an  offense.     Ibid. 

See  in  general  the  note  of  the  American 
Editor  to  Art.  89. 

•  Stephen's  rule  cannot  be  fully  accepted 
as  law  in  this  coimtry.  Thus  when  the 
alteration  is  beneficial  to  the  party  offer- 
ing the  instrument  the  burden  is  upon  him 
to  explain  the  alteration  to  thesatisfaction 
of  the  jury  ;  Jordan  v.  Stewart,  23  Pa. 
248  ff.  (1854) ;  Brady  v.  Berwind- White 
Co.,  106  Fed.  824  (1901). 

10  But  see  Wikoff's  Appeal,  15  Pa.  281 
(1850).  At  page  290  Mr.  Chief  Justice 
Gibson  says:  ''The  presumption  is  that 
they  [interlineations  in  a  will]  were  made  at 
or  before  the  time  when  the  will  was  pre- 
pared for  the  final  act  [execution]." 


65 


TABLE   XXXIII. 

Fifth  Auxiliary  of  the  Fifth  Rule  Concerning  Proof.^    Arts,  ga-92. 

WHEN  ANY  JUDGMENT  OF  ANY  COURT  OR  ANY  OTHER  JUDI- 
CIAL OR  OFFICIAL  PROCEEDING,  OR  ANY  CONTRACT  OR 
GRANT,  OR  ANY  OTHER  DISPOSITION  OF  PROPERTY,  HAS 
BEEN  REDUCED  TO  THE  FORM  OF  A  DOCUMENT,  NO  EVI- 
DENCE MAY  BE  GIVEN  OF  ANY  SUCH  JUDGMENT  OR  PRO- 
CEEDING, OR  OF  THE  TERMS  OF  SUCH  CONTRACT,  GRANT,  OR 
OTHER  DISPOSITION  OF  PROPERTY,  EXCEPT  THE  DOCUMENT 
ITSELF  ;=*  NOR  MAY  THE  CONTENTS  OF  ANY  SUCH  DOCUMENT 
BE  CONTRADICTED,  ALTERED,  ADDED  TO,  OR  VARIED  BY 
ORAL  EVIDENCE. 

I 

But  evidence  may  be  given 

For  testing  the  validity  of  a  document,  or  of  any  part  of  it,  or  to 
entitle  to  a  judgment  or  decree  relating  to  it 

^  Of  fi^ud,  intimidation,  illegality,  want  of  due  execu- 
tion, want  of  capacity  in  any  contracting  party,  the 
fact  that  it  is  wrongly  dated,  want  or  failure  of  con- 
sideration, or  mistake  in  fact  or  law.  *  Art.  90. 

►  For  modification  or  evidence  of  a  document 

'  Of  any  separate  oral  agreement  as  to  any  matter  on  which 
the  document  is  silent,  and  which  is  not  inconsistent 
with  its  tesmr.'  Art.  90. 

■•  Of  any  separate  oral  agreement,  constituting  a  condition 
precedent  to  the  attaching  of  any  obligation  under  any 
such  contract,  grant  or  disposition  of  property.'  Art.  90. 

'  Of  any  distinct  subsequent  oral  agreement  to  rescind  or 
modify  any  such  contract,  grant  or  disposition  of  pro- 
perty. '  Art.  90. 

66 


'>•  Of  any  usage  or  custom  by  which  incidents  not  expressly 
mentioned  in  any  contract  are  annexed  to  contracts  of 
that  description.  *  Art.  90. 

For  putting  a  construction  upon  a  document  ® 

'  Of  the  meaning  of  illegible  or  not  commonly  intelligible 
characters,  of  foreign,  obsolete,  technical,  local  and 
provincial  expressions,  of  abbreviations,  and  of  com- 
mon words  which  from  the  context,  appear  to  have 
been  used  in  a  peculiar  sense.  ^'^  Art.  91. 

^  Of  the  circumstances  of  the  case.  ^^  Art.  91. 


'  Of  the  circumstances  of  the  author  of  the  document 
and  his  habitual  use  of  language  or  names  for  par- 
ticular persons  or  things.  ^^  Art.  91. 

►  Of  statements  made  by  any  party  to  the  document  as  to 
his  intentions  in  reference  to  the  matter  to  which  the 
document  relates.  ^'  Art.  91. 

Of  facts  to  show  that  the  document  was  in  fact  executed 
with  its  apparent  intention.  ^* 


» Table  XXVIII. 

*0r  secondary  evidence  of  its  contents 
in  cases  in  which  secondary  evidence  is 
admksible  (see  Table  XXX).    Art.  90. 

'Applies  only  to  parties  to  documents, 
and  their  representatives  in  interest,  and 
only  to  cases  in  which  some  civil  right  or 
civil  liability  depend  upon  the  terms  of  a 
document  are  in  question.    Art.  92. 

*0r  any  other  matter  which,  if  proved, 
would  produce  any  effect  upon  the  validity 
of  the  documents,  or  of  any  part  of  it,  or 
which  would  entitle  any  person  to  any 
judgment,  decree,  or  order  relating  thereto. 
Art.  90. 


67 


*  If,  from  the  circumstances  of  the  case, 
the  court  infers  that  the  parties  did  not 
intend  the  documents  to  be  a  complete  and 
final  statement  of  the  whole  of  the  trans- 
action between  them.  Art.  90.  And  oral 
evidence  of  a  transaction  is  not  excluded 
by  the  fact  that  a  documentary  memorandum 
of  it  (not  intended  to  have  legal  efiect  as  a 
contract,  etc.,)  was  made.  Ibid.  Nor  is 
oral  evidence  of  the  existence  of  a  legal  re- 
lation, as  distinguished  from  the  terms 
thereof,  excluded  by  the  fact  that  it  has  been 
created  by  a  document ;  and  the  fact  that  a 
person  holds  a  public  office  need  not  be 
proved  by  the  production  of  his  written  or 


sealed  appointment  thereto,  if  he  is  shown 
to  liave  acted  on  it.    Jbid. 

•  In  Pennsylvania,  where  the  parol  evi- 
dence rule  has  been  less  strictly  applied 
tlian  in  England,  and  elsewhere  in  this 
country,  it  is  held  that  a  separate  oral 
agreement  constituting  the  inducement  for 
entering  into  a  written  contract  may  be 
proved. 

'Provided  that  such  ag^reement  is  not 
invalid  under  the  Statute  of  Frauds,  or 
otherwise.     Art.  90. 

*  Unless  the  annexing  of  such  incident 
to  such  contract  would  be  repugnnnt  to  or 
inconsistent  with  the  express  terms  of  the 
contract.     Art.  90. 

'Means  ascertaining  the  meaning  of  the 
signs  or  words  made  upon  it,  and  their  rela- 
tion to  facts.     Art.  91. 

'"  But  evidence  may  not  be  given  to  show 
that  common  words,  the  meaning  of  which 
is  plain,  and  which  do  n<  t  appear  from  the 
context  to  have  been  u  ed  in  a  particular 
sense,  were  in  fact  so  used ;  and  if  the 
words  of  a  document  are,  on  the  other 
hand,  so  defective  or  ambiguous  as  to  be 
unmeaning,  no  evidence  can  be  given  to 
show  what  the  author  of  the  document 
intended  to  say.    Art.  91. 

"  This  is  for  the  purpose  of  ascertaining 
the  relation  of  tl.e  words  of  the  document 
to  facts  (see  note  9) ;  and  to  this  end  every 
fact  may  be  proved  to  which  the  document 
refers,  or  mny  probably  have  been  intended 
to  refer,  or  which  identifies  any  person  or 
thing  mentioned  in  it.  Art.  91.  [See  this 
article  for  application  of  the  circumstances 
of  the  case  to  the  construction  of  a  docu- 


ment having  a  proper  legal  meaning  and 
also  a  less  proper  meaning  ;  for  the  rule 
where  a  document  has  one  distinct  mean* 
ing  in  reference  to  the  circumstances  ol 
the  case ;  and  for  the  coui-se  which  may 
be  pursued  if  the  document  applies  in  par^ 
but  not  with  accuracy,  or  not  completely 
to  the  circumstances  of  the  case]. 

"  These  facts  are  admissible  only  where 
the  document  applies  in  part  but  not  with 
accuracy,  or  not  completely  to  the  circum^ 
stances  of  the  case  (see  note  11) ;  and,  even 
in  such  cases,  no  evidence  can  be  given  of 
statements  made  by  the  author  as  to  his 
intentions  in  reference  to  the  matter  to 
which  the  document  relates.  ( But  see  notes 
13  and  14).     Art.  91. 

"Such  statements  are  admissible  only 
where  the  language  of  the  document, 
though  plain  in  itself,  applies  equally  well 
to  more  objects  than  one,  but  in  such  cases 
evidence  may  be  given  both  of  the  circum- 
stances of  the  case  (see  note  11)  and  of 
such  statements.     Art.  91. 

"  If  the  document  is  of  such  a  nature 
that  the  court  will  presume  that  it  was 
executed  with  any  other  than  its  apparent 
intention.  For  instance,  adi  pting  Stephen's 
illustration,  where  A  leaves  two  legacies  of 
the  same  amount  to  B,  afsigniug  the  same 
motive  for  each  legacy,  one  being  given  in 
his  will,  the  other  in  a  codicil,  the  court 
presumes  that  they  are  not  meant  to  be 
cumulative,  but  the  legatee  may  show, 
either  by  proof  of  surrounding  circum- 
stances, or  of  declarations  by  the  testator, 
that  they  were.  Such  proof  is  called  evi- 
dence to  rebut  an  equity. 


68 


TABLE  XXXIV. 

Sixth  Rule  Concerning  Proof.     (Added.) 
RELEVANT  FACTS  MAY  BE  PROVED 


V  By  real  evidence  ' 

I 

'  The  persons  of  individuals,  '  and  things  animate  '  or  inanimate 
which  have  a  material  relation  to  the  case.   * 

r  The  locus  in  quo.  " 

^  Pictures  of  persons  or  of  places,  and  maps  or  charts,  made  in  such 
manner  as  to  secure  accuracy  of  representation.  * 


*  Beal  Evidence  may  be  said  to  com- 
prise ■  any  object  the  inspection  whereof, 
either  taken  by  itself,  or  in  connection 
with  other  facts,  proves  or  renders  proba- 
ble the  past,  present  or  future  existence  or 
non-existence  of  any  relevant  fact,  and  the 
term,  no  doubt,  is  inclusive  of  some  ob- 
jects which  are  not  specifically  enumerated 
in  this  table.  See,  in  general,  note  of  the 
American  Editor  to  Art.  62. 

2 Coram.  V.  Emmons, 98  Mass.  6  (1867); 
Indiana  Car  Co.  vs.  Parker,  100  Ind.  181 
(1884).  Whether  a  person  suing  for  per- 
sonal injuries  can  be  compelled  by  the 
court  to  submit  his  person  to  examination 
either  by  the  jury  or  by  physicians,  is  a 
question  upon  which  the  authorities  are 
not  agreed.  Such  power  has  been  denied 
in  Pettit  v.    Brewer,    8   W.   N.  C.    253 


(1880)  and  in  Railway  Co.  v.  Botsford, 
141  U.  S.  250  (1891) ;  on  the  other  hand  it 
has  been  held  to  exist  in  Atchison,  etc., 
R.  R  Co.  V.  Thul,  29  Kans.  466  (1883). 

"Line  v.  Taylor,  3  F.  «&;  F.  731  (1862)  : 
Ferocious  dog  brought  into  court  to  prove 
his  disposition. 

*Ex.  gr.  The  weapon  or  instrument 
used  to  commit  a  crime,  bloody  garments, 
etc.  Wynne  v.  State,  56  Ga.  113  (1876); 
People  V.  Fernandez,  35  N.  Y.  49  (1866). 

*  May,  in  the  discretion  of  the  court  be 
visited  by  the  jury:  Vane  v.  Evanston, 
150  Ills.  616  (1894). 

®  Ex.  gr.  Photographs,  if  properly  veri- 
fied, Udderzook  v.  Comm. ,  76  Pa.  352  ff. 
(1874),  sketches  made  by  an  artist  who 
swears  to  their  accuracy.  People  v.  John- 
son, 140  N.  Y.  350  (1893),  etc. 


69 


THIRD   PART. 


PRODUCTION  AND  EFFECT  OF 
EVIDENCE. 


71 


TABLE  XXXV. 

First  Rule  Concerning  the  Production  and  Effect  of  Evidence.^ 

Arts.  93-97. 

THE  BURDEN  OF  PROOF  LIES  AT  FIRST  ON  THAT  PARTY 
AGAINST  WHOM  THE  JUDGMENT  OF  THE  COURT  WOULD  BE 
GIVEN  IF  NO  EVIDENCE  AT  ALL  WERE  PRODUCED  ON 
EITHER    SIDE.2       Art.  95. 

But  may  be  relieved  or  shifted 

I 

V  Bi/ presumption^ 
By  estoppel* 


^  Under  this  head,  viz.  the  Production 
and  Effect  of  Evidence,  Stephen  treats  of 
"Burden  of  Proof"  (Arts.  93-97),  of 
"Presumptions  and  Estoppels"  (Arts.  98- 
105),  of  "  The  competency  of  witnesses  " 
(Arts.  106-122),  of  "Taking  oral  evi- 
dence, and  of  the  examination  of  wit- 
nesses" (Arts.  123-139),  of  "Deposi- 
tions" (Arts.  140-142),  and  of  "Improper 
admission  and  rejection  of  evidence" 
(Art.  143).  These  subjects  are  covered 
by  Tables  XXXV-XLII  and  the  accom- 
panying notes;  but  are  there  presented 
and  dealt  with  in  a  manner  somewhat  dif- 
ferent from  that  of  the  Digest. 

>  Whoever  desires  any  court  to  give 
judgment  as  to  any  legal  right  or  liability 
dependent  on  the  existence  or  non-exist- 
ence of  facts  which  he  asserts  or  denies  to 
exist,  must  prove  that  those  facts  do  or  do 
not  exist  (Art.  93),  unless  as  to  any  par- 


ticular fact,  it  is  provided  by  law  that  the 
burden  of  proving  tiiat  fact  shall  lie  on 
any  particular  person.  Art.  96.  If  the 
commission  of  a  crime  is  directly  in  issue 
in  any  proceeding,  criminal  or  civil,  it 
must  be  proved  beyond  a  reasonable  doubt. 
(As  to  civil  cases  see  American  Editor's 
note).  The  burden  of  proving  that  any 
person  has  been  guilty  of  a  crime  or 
wrongful  act  is  on  the  person  who  asserts 
it,  whether  the  commission  of  such  act  is 
or  is  not  directly  in  issue  in  the  action. 
Art.  94.  The  burden  of  proving  any  fact 
necessary  to  be  proved  in  order  to  enable 
any  person  to  give  evidence  of  any  other 
fact  is  on  the  person  who  wishes  to  give 
such  evidence.     Art.  97. 

*  See  Table  XXXVI,  which  is  auxiliary 
to  this  one. 

*  See  Table  XXXVII,  which  is  auxiliary 
to  this  one. 


73 


TABLE  XXXVI. 

First  Auxiliary  of  the  First  Rule  Concerning  the  Production  and 
Effect  of  Evidence.^    Arts.  98-101. 


THE   BURDEN    OF  PROOF    MAY   BE   RELIEVED    OR    SHIFTED  > 

'^  By   presumption 

y  Of  legitimacy  from  the  fact  that  the  person  to  whom  the  gnedion 
relates  was  horn  during  the  continuance  of  a  valid  marriage  be- 
tween his  mother  and  any  man,  or  within  a  comjictent  timethere- 
after.  =*   Art.  98. 

Of  death  from  thefa^  that  the  person  to  whom  the  question  relates 
has  not  been  heard  of  for  seven  years  by  those  {if  any)  who  if  he 
had  been  alive  would  naturally  have  heard  of  him.  *  Art.  99. 

■■  Of  lawful  origin  of  any  proprietary  right  from  the  fact  that  a 
person  has,  for  a  long  period  of  time,  exercised  it.  °  Art.  100. 

Of  comjyliance  with  formal  requisites  for  the  validity  of  any  jtidicial 
or  official  act  where  it  is  shown  to  have  been  done  in  a  vianner 
substantially  regular.    Art.  101. 

■  Of  the  execution  of  every  instrument  whicn,  to  perfect  the  title  of  a 
person  in  possession  of  any  property  and  entitled  to  the  beneficial 
ownership  thereof,  it  was  the  duty  of  his  trustees  to  execute. ' 
Art.  101. 


1  Table  XXXV.  See  also  notes  to  Table 
XXXVII. 

*  A  presumption  which  appears  upon  the 
pleadings  may  relieve  the  party  on  whom 
it  would  otherwise  at  first  lie,  of  the  bur- 


den of  proof  (see  Table  XXXV), or  as  the 
proceeding  goes  on  the  ])arty  on  whom  it 
rested  at  first  may  prove  facts  which  raise 
a  presumption  in  his  favor,  and  in  such 
case    the  burden  of  proof   is  "shifted" 


74 


to  the  other  party.  In  considering  the 
amount  of  evidence  necessary  to  shift  the 
burden  of  proof,  the  court  has  regard  to 
the  opportunities  of  knowledge  with  respect 
to  the  fact  to  be  proved  which  may  be  pos- 
sessed by  the  parties  respectively.  Arts. 
95,  96. 

'  A  competent  time  thereafter  is  within 
such  a  time  after  the  dissolution  of  the 
marriage  and  before  the  celebration  of 
another  valid  marriage,  that  his  mother's 
husband  could  have  been  his  father.  The 
presumption  is  conclusive,  unless  it  can  be 
shown  either  that  his  mother  and  her  hus- 
band had  no  access  to  each  other  when  he 
could  have  been  begotten,  regard  being 
had  both  to  the  dale  of  the  birth  and  to 
the  physical  condition  of  the  husband,  or 
that  the  circumstances  of  their  access  (if 
any)  were  such  as  to  render  it  highly  im- 
probable that  sexual  intercourse  took 
place.  Art.  98.  As  to  incompetency  of 
the  mother  and  the  husband  as  witnesses, 
etc.  Ibid. 

*  Unless  the  circumstances  of  the  case 
are  such  as  to  account  for  his  not  being 
heard  of  w^!  thout  assuming  his  death.  There 
is  no  presumption  as  to  the  time  when  he 
died,  or  as  to  the  age  at  which  a  person  died 
who  is  shown  to  have  been  alive  at  a  given 


time,  or  as  to  the  order  in  which  two  or 
more  persons  died  who  are  shown  to  have 
died  in  the  same  accident,  shipwreck,  or 
battle.     Art.  99. 

'  If  it  might  have  had  a  lawful  origin 
by  grant  or  license  from  the  government, 
or  from  a  private  person,  and  its  exercise 
might  and  naturally  would  have  been  pre- 
vented by  the  persons  interested  if  it  had 
not  had  a  lawful  origin.  It  is  presumed 
that  it  was  created  by  a  proper  instrument 
which  has  been  lost.    Art.  100. 

•  It  will  be  assumed  that  they  have  done 
what  they  should  have  done. 

There  are  several  presumptions  in  addi- 
tion to  those  mentioned  by  Stephen,  which 
may  relieve  from  or  shift  the  burden  of 
proof.  For  instance,  sanity  is  presumed, 
and  the  burden  lies  upon  him  who  alleges 
insanity ;  but  while  there  is  some  conflict 
of  decision  in  the  State  Courts  upon  the 
question,  the  Supreme  Court  of  the  United 
States  has  recently  held  that  in  criminal 
cases  the  defendant  is  entitled  to  the  benefit 
of  a  reasonable  doubt  of  his  sanity,  pro- 
duced by  a  proper  consideration  of  all  the 
evidence.  Davis  v.  United  States,  165  U. 
S.,  373  (1897);  16  Sup.  Court  Rep.,  353. 
For  presumption  of  innocence,  see  Art.  94. 


TABLE  XXXVII. 

Second  Auxiliary  of  the  First  Rule  Concerning  the  Production 
and  Effect  of  Evidence.*    Arts.  102-105, 


THE  BURDEN  UF  PROOF  MAY  BE  RELIEVED  OR  SHIFTED 


'^  By  estoppel 


Precluding  any  person,  or  his  representative  in  interest,  from  deny- 
ing '  the  truth  of  anything  xvhich  such  person,  by  doing  or  saying, 
or  abstaining  from  doing  or  saying,  has  intentionally  caused  or 
permitted  another  person  to  believe  to  be  true,  and  to  act  upon 
such  belief.'^    Art.  102. 

Precluding  any  person  from  denying  that  he  acted  in  the  manner 
in  which  another  person  has  been  led  to  believe  he  acted  by  a 
fraud  of  whicJi  the  neglect  of  a  legal  duty  '  owing  by  the  person 
whose  act  is  in  question  was  in  the  natural  course  of  things  the 
proximate  cause*     Art.  102. 

Precluding  any  tenant ''  of  any  land  or  hereditament  *  from  deny- 
ing that  the  landlord  had^  a  title  thereto.^^    Art.  103. 

^  Precluding  any  acceptor  of  a  bill  of  exchange  from  denying  the 
signature  of  the  drawer  or  his  capacity  to  draw,  or  if  the  bill  is 
payable  to  the  order  of  the  drawer,  his  capacity  to  endorse  the 
bill,^^  or  if  the  bill  be  drawn  by  procuration,  the  authority  of 
the  ageiit  to  draw  in  the  name  of  the  principal, ^^  or  if  the  bill  is 
accepted  in  blank,  that  the  drawer  endorsed  it.     Art.  104. 

Precluding  any  bailee,  agent,  or  licensee  from  denying  thai  the 
bailor,  principal,  or  licensor,  by  whom  any  goods  were  entrusted 
to  any  of  them  respectively,  was  entitled  to  those  goods  at  the  time 
when  they  were  so  entrusted.^^     Art.  105. 


76 


*  Table  XXXV.  See  also  notes  to  Table 
XXXVI. 

*  Presumptions  may  be  either  conclusive 
or  disputable,  but  an  estoppel  is  always 
conclusive.  The  party  estopped  is  pre- 
cluded from  denying  the  existence  of  the 
fact  to  which  the  estoppel  applies,  and 
therefore  when  the  circumstances  giving 
rise  to  the  estoppel  are  shown  or  appear, 
the  existence  of  such  fact  is,  in  effect, 
conclusively  established. 

'In  any  suit  or  proceeding  between 
either  of  them  and  sucli  other  person  as  is 
next  referred  to.    Art.  102. 

*  Otherwise  than  he  would  have  acted 
except  for  that  belief.    Art.  102. 

'To  exercise  reasonable  caution  in  the 
transaction  of  any  business.     Ibid. 

'And  when  tlie  person  to  whom  the 
duty  is  owing  alters  his  position  for  the 
worse  because  he  is  misled  as  to  the  con- 
duct of  the  negligent  person  by  the  fraud. 
Ibid. 


''  And  any  person  claiming  through  any 
tenant.     Art.  103. 

*0f  which  he  hai  been  let  into  posses- 
sion, or  for  which  he  has  paid  rent,  till  he 
has  given  up  possession.     Jbid. 

9  .\^t  the  time  when  the  tenant  was  let 
into  possession  or  paid  the  rent.    Ibid. 

'"Aud  no  person  who  came  upon  any 
land  by  the  license  of  the  person  in  pos- 
session thereof,  Ls,  whilst  he  remains  on  it, 
permitted  to  deny  that  such  person  had  a 
title  to  such  possession  at  the  time  when 
such  license  was  given.     Ibid. 

**  Though  he  may  deny  the  fact  of  the 
endorsement.    Art.  104. 

"  Though  he  may  deny  his  authority  to 
endorse  it.     Ibid. 

^*  For  what  such  bailee,  agent  or  licensee 
may  show,  and  as  to  the  law  of  estoppel  as 
related  to  bills  of  lading,  see  the  last  two 
paragraphs  of  Art.  105,  and  the  n^tes 
thereto. 


77 


TABLE  XXXVIII. 

Second  Rule  Concerning  the  Production  and  Effect  of  Evidence. 

Arts.  106-109. 

NO    PERSON    IS    COMPETENT   TO    TESTIFY  ^ 


[ 


Who  is'  prevented  by  extreme  youth,  disease 
affecting  his  mind,  or  any  other  cause  of  the 
same  kind,  from  recollecting  the  matter  on 
which  he  is  to  testify,  from  understanding  the 
questions  put  to  him,  from  giving  rational 
answers  to  those  questions,  or  from  knowing 
that  he  ought  to  speak  the  truth. ^     Art.  107. 

Who  (in  criminal  cases)  is  the  accused  person  or 
is  the  wife  or  husband  of  such  person,  or  is  a 
person,  or  the  wife  or  husband  of  a  person, 
jointly  indicted  with  him.     Art.  108.* 

Who  (in  civil  cases)  is  the  lawful  husband  or 
wife  of  a  party,  or  of  a  person  whose  interests 
are  directly  involved  in  the  suit."     Art.  109. 


*  The  rule  of  the  modern  law  is  that  all  and  by  many  of  the  State  Legislatures, 

persons  are  competent  to  testify  in  all  cases  For  the  Acts  of  Congress,  see  U.  S.  Rev. 

(Art.  106),  and  it  seems  to  be  the  tendency  St.  §  858;  20  U.  S.  St.  at  Large,  30;  and 

of  the  courts  liberally  to  apply  this  rule  as  examples  of  State  legislation,  see  the 

and  to  avoid  a  too  ready  allowance  of  the  Pennsylvania  Statutes,   Acts  of  May  23, 

exceptions  to  it.     The  general  subject  of  1887,  P.  L.  158  ;  June  11, 1891,  P.  L.  287  ; 

competency,  compulsion  aud  prohibition  June  8, 1893,  P.  L.  344; 'June  18,  1895,  P. 

to  testify,  has  been  dealt  with  by  Congress  L.  195 ;  April  11, 1899,  P.  L.  41.    Stephen 

78 


does  uut  mention  as  disqualifying  the  fact 
that  the  witness  does  not  believe  in  a 
future  state  of  rewards  and  punishments, 
or  has  committed  treason,  felony,  or  the 
crimen  falsi,  but  these  disqualifications  are 
still  generally  recognized  in  this  country. 
See  American  note  to  Art.  107. 

*  In  the  opinion  of  the  judge. 

'  A  witness  unable  to  speak  or  hear  is 
net  incompetent,  if  he  can  give  his  evidence 
intelligently  by  writing,  signs,  or  other- 
wise.   Alt.  107. 

*  But  in  any  criminal  proceeding  against 
a  husband  or  wife  for  any  bodily  injury  or 
violence  inflicted  upon  his  or  her  wife  or 
husband,  such  wife  or  husband  is  compe- 
tent and  compellable  to  testify.  Art.  108. 
And  see  statutory  provisions  referred  to 
in  note  1  to  this  Table. 

When  the  only  proof  against  a  person 
charged  with  a  criminal  offence  is  the  evi- 
dence of  an  accomplice,  uncorroborated  in 
any  material  particular,  it  is  the  duty  of 


the  j  udgeto  warn  the  jury  that  it  is  unsafe 
to  convict  any  person  upon  such  evidence, 
though  they  have  a  l^al  right  to  do  so. 
Art.  121. 

If  upon  a  trial  for  perjury  the  only 
evidence  against  the  defendant  is  the  oath 
of  one  witness  contradicting  the  oath  on 
which  perjury  is  assigned,  and  if  no  cir- 
cumstances are  proved  which  corroborate 
such  witness,  the  defendant  is  entitled  to 
be  acquitted.  Art.  122.  As  to  number 
of  witnesses  requisite  in  trials  for  treason, 
see  the  same  article,  and  the  Constitution 
of  the  Unite<l  States,  Art.  3.  Sec.  3,  and 
tlie  similar  provisions  of  the  State  Con- 
stitutions. 

*  Even  after  dissolution  of  the  marriage, 
neither  party  can  testify  as  to  facts  learned 
through  the  copfidence  of  the  marital  re- 
lation, but  may  as  to  other  facts.  Art.  109. 
See  statutory  provisions  referred  to  in  note 
1  to  this  Table. 


79 


TABLE  XXXIX. 

Third  Rule  Concerning  the  Production  and  Effect  of  Evidence. 
Arts.  110-113,  *i6,  120. 

NO    PERSON   IS    COMPELLABLE   TO    TESTIFY  1 

'  As  to  any  communication  made  to  the  witness  by 
his  or  her  wife  or  husband  during  the  marriage.' 
Art.  no. 

►  As  to  anything  which  came  to  the  knowledge  of 
the  witness  in  court  as  a  judge.^    Art.  in. 

'  As  to  any  affairs  of  State,  or  as  to  official  com- 
munications between  public  officers  upon  public 
affairs,  except  with  the  permission  of  the  officer 
at  the  head  of  the  department  concerned.  Art 
112. 

►  As  to  the  names  of  persons  by  or  to  whom  infor- 
mation was  given  as  to  the  commission  of 
offences.*    Art.  113. 

As  to  any  communication  between  the  witness  and 
his  legal  adviser.'    Art.  116. 

As  to  any  question  put  to  the  witness,  the  answer 
to  which  would  °  have  a  tendency  to  expose  him 
or  her  (or  his  or  her  wife  or  husband)  to  any 
criminal  charge,  or  to  any  penalty  or  forfeiture 
which  the  judge  regards  as  reasonably  likely  to 
be  preferred  or  sued  for.^    Art.  120. 


80 


iSee  also  Tables  XXXVIII  and  XL. 

*See  statutory  provisions  referred  to  in 
note  1  to  Table  XXXVIII. 

•Doubtful.  Art.  Ill,  It  seems  that  a 
lawyer  cannot  be  compelled  to  testify  as  to 
what  he  said  in  court  in  his  character  of  a 
lawyer.    Ibid. 

*  Applies  to  cases  in  which  the  govern- 
ment is  immediately  concerned.  Art.  113. 
In  ordering  criminal  prosecutions  it  is  for 
the  judge  to  decide  whether  the  permission 
of  any  such  question  would  or  would  not, 
under  the  circumstances  of  the  particular 
case,  be  injurious  to  the  administration  of 
justice.    Ibid. 

*  Which  his  legal  adviser  could  not  dis- 
close without  his  permission  (Table  XL). 
Art.  116. 


•  In  the  opinion  of  the  judge.  Art. 
120. 

'  No  witness  who  is  not  a  party  to  a  suit 
can  be  compelled  to  produce  his  title-deeds 
to  any  property,  or  any  document  the  pro- 
duction of  which  might  tend  to  criminate 
him,  or  expose  him  to  any  penalty  or  for- 
feiture ;  and  no  solicitor,  trustee,  or  mort- 
gagee can  be  compelled  to  produce  (except 
for  the  purpose  of  identification )  documents 
in  his  possession  as  such,  which  his  client, 
cestui  que  trust,  or  mortgagor  would  be 
entitled  to  refuse  to  produce  if  they  were 
in  his  possession ;  nor  can  any  one  who  is 
entitled  to  refuse  to  produce  a  document, 
be  compelled  to  give  oral  evidence  of  its 
contents.     Arts.  118,  119. 


81 


TABLE  XL. 

Fourth  Rule  Concerning  the  Production  and  Effect  of  Evidence. 

Arts.  114,  115. 


NO   PERSON   IS  PERMITTED   TO  TESTIFY  1 
I 

'  As  to  what  passed  between  the  jurymen  in  the 
discharge  of  their  duties  in  any  case  in  which 
the  witness  was  a  petty  juror  or  a  grand  juror."* 
Art.  114. 

^As  to  any  communication,  oral  or  documentary, 
made  to  the  witness  as  an  attorney  at  law  by  or 
on  behalf  of  his  client,  or  as  to  any  advice  given 
by  him  to  his  client.^    Art.  115. 


iSee  also  Tables  XXXVIII  and 
XXXIX. 

»It  is  doubtful  whether  a  grand  juror 
may  give  evidence  as  to  what  any  witness 
said  when  examined  before  the  grand  jury. 
Art.  114. 

'The  legal  adviser  is  not  permitted  to 
make  such  disclosures  either  during  or 
after  the  termination  of  his  employment 
as  such,  unless  with  his  client's  express 
consent.  The  rule  applies  to  communica- 
tions made  and  advice  given  during,  in 
the  course,  and  for  the  purpose  of  his  em- 
ployment, whether  in  reference  to  any 
matter  as  to  which  a  dispute  has  arisen  or 


otherwise ;  and  it  is  immaterial  whether 
the  client  is  or  is  not  a  party  to  the  action 
in  which  the  question  is  put  to  the  legal 
adviser.  Art.  115.  For  a  statement  of 
communications  and  facts  to  which  the 
rule  does  not  extend,  and  of  those  whom 
the  expression  "legal  adviser"  includes, 
see  the  same  Article.  Medical  men  and 
(probably)  clergymen  may  be  compelled  to 
disclose  communications  made  to  them  in 
professional  confidence.  Art.  117.  But 
as  to  physicians  and  surgeons,  see  statutory 
provisions  referred  to  in  note  1  to  Table 
XXXVIII ;  e.  g.  the  Pennsylvania  Statute 
of  June  18, 1895,  P.  L.  195. 


88 


TABLE  XLI. 

Fifth  Rule  Concerning  the  Production  and  Effect  of  Evidence. 

Arts.  123-125. 


ALL  ORAL  EVIDENCE  GIVEN  IN  ANY  PROCEEDING  MUST  BE 
GIVEN  UPON  OATH  OR  SOLEMN  AFFIRMATION/  AND  MAY 
BE  TAKEN 

I 

I'  In  open  court  upon  a  final  or  preliminary  hearing. 
Art.  125. 

'^  Out  of  court  for  future  use  in  court.     Art.  125. 


Upon  affidavit'     Art.  125. 
>■  Under  a  commission.^  ^    Art.  12b. 

Before  any  person  appointed  by  the  court  or  a  judge,  or  selected  by 
agreement  of  the  parties.*  ^    Art.  125. 


*  Affirmation  is  permitted  only  when  the 
witness  is,  from  conscientious  motives,  un- 
willing to  be  sworn,  and  the  judge  is 
satisfied  of  the  sincerity  of  his  objection. 
Art.  123.  Oaths  are  binding  which  are 
administered  in  such  form  and  with  such 
ceremonies  as  the  person  sworn  declares  to 
be  binding.  Every  person  now  or  here- 
after having  power  by  law  or  by  consent  of 
parties  to  hear,  receive,  and  examine  evi- 
dence, is  empowered  to  administer  an  oath 
to  all  such  witnesses  as  are  lawfully  called 
before  him.     Art.  124. 

'Affidavits  are  received  upon  prelimin- 
ary and  ex  parte  applications  in  common 
law  proceedings,  e.  g.  upon  a  motion  for 
the  postponement  of  trial,  for  a  rule  to 
show  cause,  etc.  In  equity  they  are  re- 
ceived upon  similar  applications,  and  on 
motions  for  interlocutory  orders,  e.  g.  for 


an  injunction  pendente  lite,  etc.  As  to 
affidavits  upon  information  and  belief,  etc. 
See  Art.  125,  and  the  American  note 
thereto. 

*Oral  evidence  must  be  taken  in  the 
manner  prescribed  by  the  commission.  Art. 
125.     See  American  note  to  Art.  125. 

*Oral  evidence  must  be  taken  in  the 
same  manner  as  if  it  were  taken  in  open 
court  (Table  XLIl)  ;  but  the  person  taking 
it  has  no  right  to  decide  on  the  validity  of 
objections  taken  to  particular  questions 
[unless  authorized,  as  in  the  case  of  a 
master  in  equity],  but  must  record  the 
questions,  the  fact  that  they  were  objected 
to,  and  the  answers  given.     Art.  125. 

^  As  to  the  time  for  raising  objections  to 
a  deposition  or  to  evidence  taken  under  a 
commission,  see  American  note  to  Art. 
125. 


85 


TABLE  XLII. 

Sixth  Rule  Concerning  the  Production  and  Effect  of  Evidence. 

Arts.  126-142. 


WITNESSES    EXAMINED    IN    OPEN    COURT*    MUST  BE 

>  First  examined  in  chief.'- ' 
Then  cross-examined.* 
Then  re-examined." " 


'The  examination  of  witnesses  out  of 
court  proceeds  in  the  same  order,  and  even 
where  evidence  is  taken  under  a  commis- 
siou,  the  manner  of  taking  it  is,  so  far  as 
practicable,  generally  the  same  as  if  it  were 
taken  in  open  court.  See  notes  3  and  4  to 
Table  XLI. 

As  to  a  witness  refreshing  his  memory 
by  referring  to  a  writing,  see  Art.  136 ; 
and  as  to  the  right  of  the  adverse  party  to 
see  any  writing  so  used,  and  to  cross-ex- 
amine upon  it,  see  Art.  137.  As  to  the 
requirement  that  a  party  who  calls  for  a 
document  and,  upon  its  production  inspects 
it,  must  give  it  in  evidence,  see  Art.  138  ; 
and  that  a  party  who  refuses  to  produce  a 
document  on  notice,  may  not  afterwards 
use  it  as  evidence  without  the  consent  of 
the  other  party,  see  Art.  139.  As  to  statu- 
tory provisions  relating  to  depositions, 
see  Arts.  140-142. 

«  As  to  the  right  of  the  opposite  party  to 
cross-examine  a  witness  who  has  been  ex- 
amined in  chief,  or  has  been  intentionally 


sworn  or  affirmed;  as  to  recalling  a  wit- 
ness for  further  examination  or  for  furtlier 
cross-examination  ;  as  to  the  effect  of  the 
death  or  incapacity  of  a  witness  at  auy 
stage  of  his  examination ;  and  as  to  the 
practice  where  in  the  course  of  a  trial  a 
witness  who  was  supposed  to  be  competent 
appears  to  be  incompetent,  see  Art.  126, 
and  the  American  notes. 

■  Leading  questions,  if  objected  to,  must 
not  be  asked,  except  with  the  permission  of 
the  court.    Art.  128. 

*  Leading  questions  may  be  put.  Art. 
128. 

The  cross-examination  need  not  be  con- 
fined to  the  facts  to  which  the  witness 
testified  on  his  examination  in  chief.  Art. 
127.  [But  see  American  notes].  In  ad- 
dition to  questions  relating  to  facts  in  issue 
or  relevant  thereto,  the  witness,  when  un- 
der cross-examination,  may  be  asked  any 
questions  which  tend  to  test  hia  accuracy, 
veracity,  or  credibility,  or  to  shake  his 
credit  by  injuring  his  character.    Art.  129. 


As  to  how  far  a  wituess  may  be  compelled 
to  answer  such  questions,  see  Art.  129,  and 
notes,  and  as  to  questions  tending  to  crim- 
inate, etc.,  see  Table  XXXIX.  When 
a  witness  under  cross-examination  hits 
answered  any  question  which  is  relevant 
only  in  so  far  as  it  tends  to  shake  his  credit 
by  injuring  his  character,  no  evidence  can 
be  given  to  contradict  him,  except  where 
he  denies  or  does  not  admit  that  he  has 
been  convicted  of  any  felony  or  misde- 
meanor, or  answers  any  question  tending 
to  show  that  he  is  not  impartial,  by  deny- 
ing the  facts  suggested.  Art.  130.  He 
may  be  asked  whether  he  has  made  any 
former  statement  relative  to  the  subject- 
matter  of  the  action  and  inconsistent  with 
his  present  testimony,  the  circumstances  of 
the  supposed  statement  being  referred  to 
sufficiently  to  designate  the  particular 
occasion,  and  if  he  does  not  distinctly  admit 
that  he  has  made  such  a  statement,  proof 
may  be  given  that  he  did,  in  fact,  make  it. 
Art.  131.  The  same  course  may  be  taken 
with  a  witness  under  examination  in  chief, 


if  the  judge  is  of  opinion  that  lie  is  ad- 
verse. Ibid.  As  to  previous  statements 
made  by  the  witness  in  writing,  or  reduced 
into  writing,  see  Art.  IS'l ;  and  as  to  im- 
peaching the  credit  of  a  witness  by  the 
evidence  of  other  persons  who,  from  their 
knowledge  of  him,  believe  him  to  be  un- 
worthy of  credit  upon  his  oath,  see  Art. 
133. 

When  a  man  is  prosecuted  for  rape  or  an 
attempt  to  ravish  (Table  VllI),  the  woman 
may  be  asked  whether  she  has  had  connec- 
tion with  other  men,  but  her  answer  cannot 
be  contradicted.  She  may  also  be  asked 
whether  she  has  had  connection  on  other 
occasions  with  the  prisoner,  and  if  she 
denies  it,  she  may  be  contradicted.  Art. 
134. 

^  The  re-examination  must  be  directed  to 
the  explanation  of  matters  referred  to  in 
cross-examination ;  and  if  new  matter  is, 
by  permission  of  the  Court,  introduced  in 
re-examination,  the  adverse  party  may 
further  cross-examine  upon  that  matter. 
Art.  127. 


87 


TABLE   XLIII. 

Seventh  Rule  Concerning  the  Production  and  Effect  of  Evidence. 

Art.   143. 

A  NEW  TRIAL  WILL  NOT  BE  GRANTED  IN  ANY  CIVIL  ACTION  1 
ON  THE  GROUND  OF  THE  IMPROPER  ADMISSION  OR  REJEC- 
TION OF  EVIDENCE,  UNLESS  SOME  SUBSTANTIAL  WRONG  OR 
MISCARRIAGE  HAS  BEEN  THEREBY  OCCASIONED  IN  THE 
TRIAL  OF  THE  ACTION.     ART.  143. 


1  As  to  criminal  cases,  the  English  rule, 
as  presented  by  Stephen,  isdifiereut;  but, 
as  noticed  by  the  American  editor,  "  in  this 
country,  it  is  a  general  rule  in  criminal 
cases  that  a  new  trial  will  not  be  granted 


for  the  erroneous  admission  or  rejection  of 
evidence,  when  it  clearly  appears  that  the 
defendant  could  not  have  been  prejudiced 
thereby." 


89 


UC  SOUTHERN  REGIONAL  UBRARY  FAOUTY 


A    000  684  365    o 


